Moultrie Packing Co. v. Atlanta Mutual Ass'n

97 S.E. 552, 23 Ga. App. 44, 1918 Ga. App. LEXIS 27

• Court: Court of Appeals of Georgia
• Decided: November 11, 1918
• Docket: 9541
• Status: Published

Opinion

Luke, J.

A garnishee who had not answered could not hy affidavit of illegality arrest an execution and set aside a judgment, upon the ground that before its rendition against the garnishee as being in default, the defendant had paid to the attorney for the plaintiff in ft. fa. a part of the claim and had given him a check and' note to cover the balance. • Affidavit of illegality is not the proper remedy in such a ease. Tumlin v. O’Bryan, 68 Ga. 65; Lynch v. Gannon, 57 Ga. 608; Civil Code (1910), § 5311. The court did not err in sustaining the demurrer to the affidavit of illegality.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.