Leath v. Hardman

158 S.E. 453, 43 Ga. App. 270, 1931 Ga. App. LEXIS 302

• Court: Court of Appeals of Georgia
• Decided: April 20, 1931
• Docket: 20974
• Status: Published

Opinion

Jenkins, P. J.

This is an affidavit of illegality to an execution issued on a criminal recognizance bond against the administrator of the surety. The grounds of illegality are that the bond was forfeited after the death of the surety and before the appointment of an administrator, and that the judgment against the administrator was rendered prior to the expiration of twelve months from the date of his appointment. It appears that after the forfeiture of the bond and the issuance of the rule nisi, the administrator was made a party in the proceeding, and judgment was rendered against him and the principal, on the rule nisi, after service had been perfected on the administrator. Eeld: Since the administrator could have waived any right that he might have had under the twelve-months exemption from suit, the court was not entirely and under all circumstances without jurisdiction (Emmett v. Dekle, 132 Ga. 593, 64 S. E. 682), and the judgment rendered against him could not under any view be taken as wholly void on account of being premature; and since it appears that the administrator was made a party in the proceeding to make the forfeiture absolute, an affidavit of illegality could not subsequently be employed to go behind the judgment in order to reach either of the alleged defects. Consequently, the court did not err in overruling the affidavit of illegality. Civil Code (1910), § 5311; Cochran v. Whitworth, 21 Ga. App. 406 (2) (94 S. E. 609) ; Waters v. Hurst, 12 Ga. App. 248 (77 S. E. 102) ; Almond v. Mobley, 40 Ga. App. 305, 311 (149 S. E. 293).

Decided April 20, 1931. Rosser & Shaw, Norman Shattuclc, for plaintiff in error. M. Neil Andretvs, solicitor-general, Dean Owens, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.