Price vs. The State of Georgia. to consider the question of abating a mill-pond owned by him, as a nuisance; that the pond was connected with a grist-mill; that he had expended large sums of money upon it; that it was not, in fact, a nuisance; that the mayor, etc., had no jurisdiction to abate it, but they had declared their intention of so doing, and that, from the circumstances and information which he had received, he believed that, at once upon declaring it a nuisance, they would proceed to break the dam, and would not give him. an opportunity to apply for and obtain a writ of certiorari. He prayed for an injunction to prevent their proceeding to declare the pond a nuisance and to abate it. The defendants demurred to the bill and answered it, alleging that the proceedings were regular and on notice, and denying that a majority of them had declared their intention of breaking the pond, or that they would disregard a notice of certiorari. On the hearing, the chancellor refused to enjoin the defendants from passing upon the question whether the mill-pond was a nuisance, but granted an injunction restraining them from abating it within five days after declaring it to be such (if they should so declare), in order to give the plaintiff time to apply for a writ of certiorari. Defendants excepted.] 74 378 el17 420 PRICE VS. THE STATE OF GEORGIA. Section 4438 of the Code, which provides a penalty for obstructing a railroad, includes a street railroad operated by horse power, as well as a railroad on which the cars are drawn by a steam locomotive. Judgment affirmed. October 21, 1884. BLANDFORD, Justice. [Price was indicted for obstructing the track of the Columbus Street Railroad Company by placing rocks on Lamar ct al. vs. Knott et al. it. He filed various pleas, the principal point made by which was that the Columbus Railroad was a street railroad, propelled by horse-power, and not by steam, and was, therefore, not within the meaning of the act of 1837. (Code, §4438.) They were stricken by the court on demurrer. Defendant was convicted. He moved for a new trial, and on its refusal, excepted.] LAMAR et al. vs. KNOTT et al. [Jackson, C. J., did not preside, on account of providential cause.] 1. A judgment in ejectment is conclusive as to the title between the parties thereto, unless the jury find for the plaintiff less than the fee. In this case, the identical title now involved having been passed on in an ejectment case, a subsequent bill filed to enforce the rights of the plaintiff, which alleged all the former proceedings and other immaterial facts, was without equity, and was properly dismissed on demurrer. Code, §3362. 2. The matter involved in this case is res adjudicata between the parties. Where plaintiffs were not ignorant of the facts now relied on when the case was formerly before the court, but failed to make use of them, and were not prevented from doing so by accident or mistake, or by the fraud or act of their adversaries, a court of equity will not relieve them from a judgment which could have been prevented with proper diligence on their part. Judgment affirmed. October 2, 1884. HALL, Justice. [Andrew Lamar et al. filed their bill against McVey et al., alleging, in brief, as follows: A certain lot of land was granted by the state to one James De Lay in 1837, and by him was conveyed to one Hancock, between 1837 and 1839, and by regular chain of title passed from Hancock to John B. Lamar, of whom complainants are the sole heirs. The deed from De Lay to Hancock was lost or destroyed. In 1866 (the copy deed in the record says 1856), complainants obtained from the heirs of De Lay, McDaniel vs. Westberry. he having died, a deed reciting the facts and conveying the land by quit-claim to complainants. In 1866, one Turner took possession of the land and McVey was his tenant. The chain of title under which Turner claimed, purporting to come from De Lay after his death, was forged. In 1869, complainants brought ejectment against McVey and Turner and Knott, the vendee of the second named, but McVey alone was served. On the trial, the court held that the recitals in the deed from the De Lay heirs were not evidence against defendants, and did not carry the date of the title back to 1837, but operated as a conveyance only from its date, prescription having begun to run before the deed of complainants from the De Lays, and was not suspended thereby, although complainants were minors. A verdict was rendered for defendant in ejectment. The object of the present bill was to establish the lost deed and set up their title thereunder On demurrer, the chancellor dismissed the bill, and complainants excepted. The ejectment case will be found reported in 48 Ga., 330.] MCDANIEL 28. WESTBERRY. 1. Where, on a proceeding to foreclose a mortgage, the rule nisi, the 2. Where the mortgage, the rule nisi and the rule absolute all showed September 16, 1884. JACKSON, Chief Justice. [R. D. Westberry foreclosed a mortgage against C. J. McDaniel and wife. The rule nisi, the rule absolute, and Cannon rs. The State of Georgia. the execution issued thereon, each contained the statement that the debt was for the purchase money of the mortgaged property. The mortgage fi. fa. was levied on this property, and subsequently the plaintiff filed an affidavit that such property was subject to his debt. McDaniel filed an affidavit of illegality on two grounds: (1.) That the property had been regularly set apart to him as a homestead, and that no affidavit had been made by the plaintiff, as required by law, before a levy was made thereon, and that the affidavit, which was subsequently filed, was defective, because it did not set forth that the defendant had no other property except the homestead, and did not state facts which would subject the homestead. (2.) That the debt was not for purchase money, as alleged in plaintiff's affidavit. On demurrer, the court struck the first ground of illegality. The jury found the property subject. Defendant moved for a new trial, because the court struck the first ground of the affidavit of illegality, and because the court charged that it was res adjudicata that the debt was for purchase money. The motion was overruled, and defendant excepted.] CANNON vs. THE STATE OF GEORGIA. [Jackson, C. J., not presiding, on account of providential cause.] An indictment was found at the October term, 1883, of Sumter superior court, and was transferred to the county court. The defendant objected to being tried by the county judge, because the latter was interested in the costs due the clerk of the superior court, on account of the finding of said indictment, he having been an assistant of such clerk, and, under an arrangement between them, being entitled to one-half the costs due the clerk thereon. An agreement was then produced, to the effect that, in all indictments found at said term of court and transferred to the county court, the county judge should have no interest in any manner, shape or form, but the costs thereon should belong to the clerk alone. This was dated February 5, 1884: Dykes vs. McClung Held, that although the county judge may not have had such an interest as would disqualify him, and may have been free from any corrupt conduct, yet the general countenance of the case is bad, and a new trial might be granted by this court, if the testimony was not clear and satisfactory that the accused was guilty. Judgment affirmed. October 2, 1884. BLANDFORD, Justice. [Cannon was indicted for using obscene and vulgar language in the presence of a female. The indictment was transferred to the county court of Sumter county. Defendant filed a special plea, alleging the disqualification of the county judge, as set out in the head-note. The judge heard evidence, and overruled the plea. Defendant was found guilty. He petitioned for a certiorari, alleging error on this and other rulings. On the hearing, the judge overruled the certiorari, and sustained the judgment of the county court. Defendant excepted.] DYKES vs. MCCLUNG. 1. In cases of foreclosure of mortgages, the service must be personal, or by publication under Code, section 3962. Service by leaving a copy at the residence of the defendant is not sufficient. Code, §§3962, 3339. 2. Where it appears on the face of the record that the mortgage foreclosed was made by a wife to pay the debt of her husband out of her property, and the rule nisi and rule absolute show the same facts, such a judgment may be set aside within three years, on motion. (JACKSON, C. J., alone.* Judgment affirmed. October 2, 1884. JACKSON, Chief Justice. [Mrs. Bettie McClung filed her petition to set aside a judgment against her in favor of W. M. Dykes, based on the foreclosure of a mortgage on certain realty. Two grounds for the motion were stated: |