Emory v. Smith

51 Ga. 323

Opinion

McCay, Judge.

Under the uniform rulings in this state, an illegality does not lie on the ground that there is error in the judgment. Not, at least, unless the judgment be void. Here the most that can be said is that the judgment was irregular. Such a judgment was possible under our law, under the, writ. There" was no error therefore in overruling the illegality. This proceeding is a statutory one, and only in special cases, to-wit: when the execution is proceeding illegally. If it conforms to the judgment it is not proceeding illegally, except, perhaps, when the judgment is absolutely void. We do not say the party has no remedy. If the facts are true, as stated, this can hardly be so. We leave this, however, to the party’s own discretion.

Judgment affirmed.