Brach & Sons v. Oglesby Grocery Co.

127 S.E. 157, 33 Ga. App. 481, 1925 Ga. App. LEXIS 538

• Court: Court of Appeals of Georgia
• Decided: February 12, 1925
• Docket: 15727
• Status: Published

Opinion

Jenkins, P. J.

1. “A judgment that is void may be attacked in any court, and by anybody. In all other cases judgments can not be impeached collaterally, but must be set aside by the court rendering them.” Civil Code (1910), § 5968.

2. Under the general law applicable to courts other than the municipal court of Atlanta, or one as to which the creating act may contain a provision similar to that quoted below, an attachment in accordance with § 5056 of the Civil Code (1910), issued upon an affidavit administered by a commercial notary public, is absolutely void. Heard v. National Bank of Illinois, 114 Ga. 291, 293 (2), 294 (40 S. E. 266); Bruce v. Conyers, 54 Ga. 678; Falligant v. Blitch, 19 Ga. App. 675 (1); Civil Code (1910), § 622.

(a) Section 28 of the act. creating the municipal court of Atlanta, however, provides, that “affidavits for attachment and garnishment may be made before any officer authorized by law to administer oaths, including commercial notaries public; but all bonds in such proceedings issuing out of said court shall be approved by the clerk of said court, or his deputies, and all attachments and summons of garnishment shall be issued by said clerk or his deputies, and bear test in the name of said court.” This section creates an exception to the general law with reference to the attestation of attachment affidavits before commercial notaries, where the attachment writ issues from the municipal court of Atlanta. That it was the legislative intention to make this exception applicable to attachments issued from the municipal court returnable to the superior court, as well as to those returnable to the municipal court itself, appears jiot only from the general language in the section, “proceedings issuing' out of said court,” but also from the language of the preceding section 27, “attachments in said court, or returnable to said court.”

Decided February 12, 1925.

.3. Since the previous judgment was not void, the payment thereof was a good defense to the, present action, and the trial judge did not err in so ruling.

4. Constitutional questions not raised by the pleadings nor passed upon in the trial court can not be raised for the first time in the appellate court. Cooper v. Nat. Fertilizer Co., 132 Ga. 529 (64 S. E. 650). They must have been properly raised, and their mere suggestion and argument in the briefs is insufficient. Laffitte v. Burke, 113 Ga. 1000, 1001 (39 S. E. 433); Spielberger v. Hall, 159 Ga. 511 (126 S. E. 552). But see, in this connection, Barnard v. DuPree, 149 Ga. 796 (102 R. E. 422).

Judgment affirmed.

Stephens and Bell, JJ., concur. Anderson, Rountree & Crenshaw, for plaintiffs. Little, Powell, Smith & Goldstein, for defendant.