It is not apparent to us that there was error in the refusal of the judge of the'superior court to sanction this certiorari.
1. The judgment which the county court set aside, upon the defendant’s affidavit of illegality, was not a void judgment, because the judge rendering it was related in equal 'degree to. both the parties'litigant, as appears by admission made in argument here, though differently stated in the petition for certiorari; especially is this so when it appears that no objection was made at the hearing on this ground, and when the judgment had been acquiesced in for more than five years. Code, §205; 55 Ga., 282, 607. But if the judge of the county court committed error in sustaining this affidavit of illegality, there was none in reinstating the case on his docket; even if the judgment had been void, as he supposed, this did not, ipso facto, take the case out of court. We are inclinéd to the opinion that it had the effect, without more, of re-instating the parties to 'the position they held before the judgment was rendered, and the order sustaining the affidavit of illegality should have given this direction to the case, without the necessity of a motion upon the part of the plaintiff iny?. fa. to reinstate his case on the docket. This would seem to follow ¡from several decisions of this court bearing on the question. 46 Ga., 396; 35 Id., 173. The defendant in the fi. fa. has gotten more than he was entitled to under the law, and the plaintiffs less. Surely he should not be heard to complain of this. This case is the very opposite in its main .features from that in 57 Ga., 60. There the judgment was •set aside on the plaintiff’s own motion; he had voluntarily 'taken and acquiesbed in it for more than ten years, when all the witnesses- to the transaction might have been dead, and his opponent, by reason of this long lapse of time, might have been subjected to great disadvantage in setting up his defence, if indeed it might not have been impossi*51ble to do so effectually. To have suffered him to take advantage of such gross laches would have been both inequitable and unjust; it would have been holding out inducements to delay and negligence in the prosecution of rights, in direct contravention of the settled policy of the law.
2. This is not a motion for a new trial, nor its equivalent; the distinction, between that proceeding and a motion to re-instate is clear and obvious. 30 Ga., 191; 42 Id., 435 (1 head-note); 55 Id., 521.
Judgment affirmed.