
    Beall vs. Sinquefield & Company.
    1. The judgment which the county court set aside upon an affidavit of illegality in this case was not void, because the judge rendering it was related in equal degree to both the parties litigant, especially when no objection was made at the hearing on this ground, and when the judgment had been acquiesced in for more than five years.
    (a.) Semble, that if the judgment were void, this did not ipso facto take the case out of court, and that an order sustaining the affidavit of illegality, on the ground that the judgment was void, would have the effect of re-instating the parties to the position they held • before the judgment was rendered, and the order sustaining the illegality should have so directed.
    
      (b.) There was no error in re-instating the case.
    (c.) This ease differs from that in 57 Ga., 60.
    
      2. The distinction between a motion for new trial and a motion to reinstate a case is clear and obvious.
    April 8, 1884.
    Practice in Superior- Court. Judgments. Illegality. Nullities. Before Judge Carswell. Jefferson County. At Chambers. September 7,1883.
    
      F. A. Sinquefield & Company brought two suits on. promissory notes against Jesse R. Beall, and obtained judgments thereon in the county court of Jefferson county. They?, fas. issued thereunder were levied, and Beall filed affidavits of illegality, on the ground that the judgments were void, because the county judge who rendered them was related in the fourth degree of consanguinity to both of the plaintiffs. This issue was tried by the successor of the judge who rendered the judgments. He sustained the illegalities and held the j udgments void. Plaintiffs then took out a rule nisi against the defendant to show cause why the cases should not be re-instated and stand for trial. Defendants showed the following causes:
    (1.) The county court has no jurisdiction to re-instate a case, because a motion to re-instate being in the nature of a motion for a new trial, the superior courts only have urisdiction to hear and determine such motions.
    (2.) The motion comes too late, as nearly five years have elapsed since the first judgment was rendered in the case, and the suit stricken from the docket, and the subject-matter of the suit is barred by the statute of limitations.
    (8.) A motion to re-instate being an equitable proceeding,the plaintiff in such cases must be free from any fault or negligence on his part, and cannot take advantage of his own laches. The motion must be made within three years after the rendition of the judgment dismissing plaintiff’s suit.
    (4.) More than six years having elapsed since the notes,, which are the subject-matter of said suits, became due, they are now barred by the statute of limitations.
    The court re-instated the cases. Defendant applied for a writ of certiorari, which was refused, and he excepted..
    J. J. Whigham; Cain & Polhill, for plaintiff in error..
    Gamble & Hunter, fot defendants,
   Hall, Justice.

It is not apparent to us that there was error in the refusal of the judge of the'superior court to sanction this certiorari.

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 impossible 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.

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.  