Cook & Kimbrell v. City of Colquitt

116 S.E. 37, 29 Ga. App. 494, 1923 Ga. App. LEXIS 87

Opinion

Stephens, J.

1. The remedy by affidavit of illegality is purely statutory, and, as provided in the general statutes of this State (Civil Code of 1910, §. 5305 et seq.), applies only to the arrest of executions based upon judgments of courts, arid not to the arrest of executions issued ex parte by some ministerial officer as a city clerk. See, in this connection, Cochran v. Whitworth, 21 Ga. App. 406 (94 S. E. 609); Hill v. DeLaunay, 34 Ga. 427; Manning v. Phillips, 65 Ga. 548; City of Atlanta v. Jacobs, 125 Ga. 523 (54 S. E. 534).

2. There being no statutory provision for arresting by affidavit of illegality an execution issued by the city clerk of the City of Colquitt under the authority of section 21 of the act incorporating the City of Colquitt (Ga. L. 1915, p. 534), an affidavit of illegality, interposed to such an execution and returned to the superior court of Miller county, was properly dismissed.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.