Arnold-Forrest Horse & Mule Co. v. Fleeman

71 S.E. 766, 9 Ga. App. 483, 1911 Ga. App. LEXIS 193

Opinion

Powell, J.

1, An affidavit of illegality can not be used as a substitute for certiorari or other appellate procedure. If the affiant was regularly served with process or voluntarily appeared and pleaded in the. main suit, he can not by his affidavit of illegality assail the judgment because of mere errors of law which took place on the trial.

2. A garnishee was served, and answered, denying indebtedness. The answer was traversed. The plaintiff served upon the garnishee notice to produce certain books and papers at the trial. Because of an alleged failure of the garnishee to produce the books and papers, the court entered judgment against the garnishee as if by default. Held: Any error on the part of the court as to his right to enter judgment against the garnishee for failure to produce the books was a mere error of law, affecting the correctness of the trial, but not rendering the judgment a nullity; and this is true irrespective of whether the notice to produce, the disobedience to which afforded the alleged reason for the . rendering of the judgment of the justice, was ever legally served or not. An error of the character indicated must be corrected by certiorari or other appellate procedure, and can not be reached by affidavit of illegality. . Judgment affirmed.

Decided June 29, 1911.

Certiorari; from Fulton superior court — Judge Ellis. January 9, 1911.

Morris Machs, F. M. Hughes, for plaintiff in error. Horton -Brothers & Burress, contra.