
    Moore v. O’Barr.
    1. Where to levy on land .of an execution against husband and wife, issued from a justice’s court, the husband interposed an affidavit of illegality on the ground that the land had been set apart to him as a homestead, the affidavit should have been returned for trial to the justice’s court whence the execution issued. The title to the land not being involved, the superior court had no jurisdiction; Therefore, the affidavit having been returned to the superior court, and the trial having resulted in a verdict in favor of the plaintiff m execution and a judgment ordering that the same proceed, and to a fresh levy the wife having interposed her claim on the ground that the land had been set apart to her husband as a homestead for the benefit of herself and of her minor children, she was not bound by the judgment rendered, on the trial of the illegality. (E.)
    2. The jurisdiction was not waived by the participation of the husband in the trial of the illegality, so as to estop the wife, as claimant, from making the question. (E.)
    May 8, 1891.
    Jurisdiction. Bes adjudicata. Waiver. Judgments. Estoppel. Before Judge Hutchins. Franklin superior court. September term, 1890.
    Reported m the decision.
    McCurry & Proeitt, for plaintiff.
    J. B. Park and J S: Dortch, by brief, for claimant
   Simmons, Justice.

The record in this case discloses that Moore obtained a judgment against Asa O’Barr and E. E. O’BaiT, in a justice’s court. Execution was issued thereon and levied on a certain tract of land. Asa O’Barr filed an affidavit of illegality to this execution, upon the ground that the land had be“en set apart to him as a homestead. The affidavit of illegality was returned to the superior court of the county, and on the trial thereof in that court, the jury returned a verdict in favor of the plaintiff' in fi. fa., and the judge entered a judgment ordering the ji fa. to proceed. The land was again advertised for sale, and Mrs. E. E. O’Barr, the wife of Asa O’Barr, filed her claim thereto, on the ground that it had been set apart as a homestead to her husband for the benefit of her and her minor children, and was therefore exempt from levy and sale. This claim was returned to the superior court of the county, aud the plaintiff va.fi. fa. tendered issue thereon, and insisted that “the issue raised by said claim was fully adjudicated and passed upon by a court of competent jurisdiction, to wit, the superior court of said county, at the September term, 1889, under an affidavit of illegality filed to the same levy by Asa O’Barr, one of the defendants, . . in which he alleged and undertook to prove that the land levied upon had, on the 16th of November, 1878, been set apart to himself and family as a homestead, and that under the issue made upon said affidavit of illegality, the same was fully investigated and decided adversely to said Asa O’Barr and his family, by a verdict of the jury, and upon said verdict a judgment was entered, which verdict and judgment have never be.en excepted to or set aside. . . Said adjudication is a complete bar to the present claim ; and of this he puts himself upon the country.”

In reply to this issue the claimant insisted that she’ was not bound by said former adjudication, for the reason that the court trying the same had no jurisdiction, and that the claimant’s husband could not waive the jurisdiction, and the claimant was not bound by any election of the remedy by him, unless tried by a court having jurisdiction. The trial judge ruled that the claimant was not bound by the former adjudication, because the court rendering the judgment upon the illegality had no jurisdiction to try the same. The case was then submitted to the jury, and under the charge of the court they returned a verdict for the claimant. The plaintiff made a motion for a new trial,' on the ground that the judge erred in holding that the claimant was not bound by the former adjudication ; which motion was overruled, and the plaintiff excepted.

We think the court was right in refusing to grant a new trial on this ground. The code, §3666, requires that when an execution is levied and illegality filed thereto, the officer shall return the execution, affidavit and bond to “the next term of the court from which the execution issued,” and the issue raised by the illegality shall be tried in that court. This execution was issued from a justice’s court, and when the illegality was filed by Asa O’Barr, the officer levying the same should have returned it to the justice’s court, and it should have been tried in that court.

It was argued, however, that the illegality made an issue respecting the title to land, and that the superior court was the proper court to which it ought to have been returned, because that court had exclusive jurisdiction to try titles to land, and therefore the judgment was not a nullity, but was legal and binding upon the claimant. We do not think this was a suit or issue of which the superior court had exclusive jurisdiction. While the superior court has exclusive jurisdiction to try titles to land, that is, of all suits brought for the purpose of trying title, it does not have exclusive jurisdiction in suits where the title is only incidentally or collaterally involved. The issue made by the illegality was not an issue involving the title to the land levied upon, but was an issue as to whether the land was exempt from levy and sale under the execution. There was no dispute as to the title of the land. The plaintiff asserted in his levy that the title was in the defendant, and the defendant did not deny it, but insisted that although the title was in him, it was exempt under the homestead law from levy and sale. The title to the land, therefore, was not involved, and the illegality should have been returned to the justice’s court from whence it was issued.

It was also insisted that while it might he true that the superior court did not have exclusive jurisdiction to try this case, ’and that the ease might have been returned to the justice’s court for trial, the defendants m ii. fa. waived the jurisdiction by appearing in the superior court and participating in the trial there of the illegality. Wo have shown that under the code the execution should have been returned to the justice’s court, that court alone having jurisdiction of the parties and subject-matter of the case. The superior court had no jurisdiction of the parties or subject-matter, because there was no law. authorizing an officer to return the case to that court. It had no more jurisdiction of this case than it would have had of the original case begun in the justice’s court by Moore against the defendants upon the contract, if the constable had returned the summons to the superior court when required by law to return it to the justice’s court. The superior court in the latter case would have had no jurisdiction of the parties or the subject-matter of the suit, and if it had rendered a judgment therein it would have been void. “Parties, by consent, express or implied, cannot give jurisdiction to the court as to the person or subject-matter of the suit. It may, however, be waived, so far as the rights of the parties are concerned, hut not so as to prejudice third persons.” Code, §3460. We do not think, therefore, that the participation of one of the defendants on the trial of the illegality in the superior court gave that court jurisdiction, or that his wife, the other defendant in the execution and the present claimant, is estopped from making the question. Bostwick v. Perkins, 4 Ga 48 ; Yon v. Baldwin, 76 Ga. 769.

Judgment affirmed. .  