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58 Ga. App. 229

Tanner v. Wilson

Court of Appeals of Georgia

Decided June 30, 1938

Court of Appeals of Georgia · decided 1938-06-30

Relies on Tanner v. Wilson

Decided 1938-06-30

¶1ON MOTION ROE REHEARING.

Broyles, C. J.

¶21. It is true that this court inadvertently stated in its opinion that in Tanner v. Wilson, 184 Ga. 628, “the trial judge dismissed the petition on general demurrer, and the Supreme Court affirmed the judgment of the trial court on May 15, 1937,” whereas the judgment of the trial court was reversed by the Supreme Court. We have corrected the same by changing the word “affirmed” to the word “reversed” in the original opinion, so that the quoted clause will read: “the trial judge dismissed the petition on general demurrer, and the Supreme Court reversed the judgment of the trial court.” However, this alteration makes no difference in the conclusion reached in the original opinion, since it is apparent that the statement that the “Supreme Court ‘affirmed’ the judgment of the trial court” was a mere inadvertence which did not affect the decision in the slightest particular. For instance, we stated in the very next sentence that “it was not until the reversal of the judgment of the trial court by the Supreme Court in Tanner v. Wilson, 184 Ga. 628, supra, that it was held that the verdict of January 19, 1934, created no lien on the land in question;” and our original opinion clearly shows that this court acted on the correct premise, to wit, that in the case last cited the Supreme Court reversed the judgment of the trial court.

¶32. Exception is taken to the statement in the original opinion that the Supreme Court’s ridings in Tanner v. Wilson, 184 Ga. 628, “were apparently based upon the assumption that G. J. Tanner was an innocent purchaser as alleged in his petition.” The foregoing statement is warranted by the very language of the court in the case last cited, for on page 635 of that decision the court said: “Under the allegations of the petition, the plaintiff was a bona fide purchaser without notice and for value, and at a time when there-was no lien on the premises by reason of such verdict. All action taken by the trial court in that case during *237the time it was superseded, as against third parties in good faith, was void and without effect, the court not having jurisdiction so to act. Therefore the petition set out a cause of action for cancellation of the instruments, and for the relief sought.” (Italics ours.)

¶43. In the original opinion this court stated certain facts as appearing “from the record in the original case in which Wilson procured his verdict of January 19, 1934.” The quoted clause clearly shows that those facts were not a part of the record in this ease, and were merely stated incidentally as a part of the history of the litigation.

¶54. The remaining grounds of the motion for rehearing are without merit.

¶6Rehearing denied.

MacIntyre -and Guerry, JJ., concur.
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