Brown v. Bowman

Court of Appeals of Georgia

Brown v. Bowman

144 S.E. 353, 38 Ga. App. 507, 1928 Ga. App. LEXIS 319

CourtCourt of Appeals of Georgia

DecidedAugust 30, 1928

Docket18672

StatusPublished

This text of 144 S.E. 353 (Brown v. Bowman) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Bowman, 144 S.E. 353, 38 Ga. App. 507, 1928 Ga. App. LEXIS 319 (Ga. Ct. App. 1928).

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Opinion

Jenkins, P. J.

The remedy by affidavit of illegality can be employed to go behind and attack a judgment only when it is shown that the judgment is absolutely void, in that the court rendering it was without jurisdiction so to do, or that the defendant has not had his day in court. McConnell v. Mason, 30 Ga. App. 82 (116 S. E. 658). In the instant case it is not disputed that a court of competent jurisdiction entered its decree vesting in the affiant’s intestate title to the land levied upon, subject to the lien of the execution sought to be enforced, nor is it disputed that the affiant’s intestate was represented in the proceeding resulting in the decree, and by his counsel consented thereto. Accordingly the decree can not be attacked by him by affidavit of illegality, and this is true irrespective of whether or not it is conclusive upon other persons who might have had an - interest in the property, but who were not represented in the proceeding resulting in the decree. Accordingly, the court did not err in sustaining the demurrer interposed by the plaintiff in fi. fa. to the affidavit of illegality.

Judgment affirmed.

Stephens and Bell, JJ., concur.

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Jenkins, P. J.

The remedy by affidavit of illegality can be employed to go behind and attack a judgment only when it is shown that the judgment is absolutely void, in that the court rendering it was without jurisdiction so to do, or that the defendant has not had his day in court. McConnell v. Mason, 30 Ga. App. 82 (116 S. E. 658). In the instant case it is not disputed that a court of competent jurisdiction entered its decree vesting in the affiant’s intestate title to the land levied upon, subject to the lien of the execution sought to be enforced, nor is it disputed that the affiant’s intestate was represented in the proceeding resulting in the decree, and by his counsel consented thereto. Accordingly the decree can not be attacked by him by affidavit of illegality, and this is true irrespective of whether or not it is conclusive upon other persons who might have had an - interest in the property, but who were not represented in the proceeding resulting in the decree. Accordingly, the court did not err in sustaining the demurrer interposed by the plaintiff in fi. fa. to the affidavit of illegality.

Judgment affirmed.

Stephens and Bell, JJ., concur.

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144 S.E. 353, 38 Ga. App. 507, 1928 Ga. App. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-bowman-gactapp-1928.

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