Conyers v. Luther Williams Banking Co.

ON MOTION FOR REHEARING.

On motion for rehearing the contention is made that the court overlooked the principle of law enunciated by the Supreme .Court in the ease of Memmler v. State, 75 Ga. 576, in which it was held that “if a certiorari was properly dismissed, the judgment will not be reversed, though the court based it upon an erroneous reason.” The argument of counsel for the defendant in error is that the evidence demanded the finding against the claimant, and that the result effected by the dismissal of the, certiorari'should not be disturbed, although the dismissal was planted upon an erroneous reason. Assuming (without deciding) that in a case such as the instant one, where the judgmént of the court below shows on its face that the case was dismissed .for.alleged lack of jurisdiction, with no decision at all by the judge on the question of evidence, the principle of the Memmler case would have application, we are *54unable to agree with the contention of the defendant in error that the evidence was such as to demand the finding in favor of the plaintiff in fi. fa. and against the claimant, so as to deprive the judge of the superior court of the discretion vested in him by law. It appears from the evidence that the claimant wife had bought certain portions of the property levied upon under the fi. fa. against her husband out of her monthly allowance from her husband’s salary about six years or more prior to the issuance of the fi. fa. against the husband, the date of the fi. fa. being the only indication disclosed by the record as to when the debt against the husband was created. Rehearmg denied.