Stewart v. Youmans

Court of Appeals of Georgia

Stewart v. Youmans

7 S.E.2d 582, 61 Ga. App. 773, 1940 Ga. App. LEXIS 262

CourtCourt of Appeals of Georgia

DecidedFebruary 29, 1940

Docket27957.

StatusPublished

This text of 7 S.E.2d 582 (Stewart v. Youmans) 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

Stewart v. Youmans, 7 S.E.2d 582, 61 Ga. App. 773, 1940 Ga. App. LEXIS 262 (Ga. Ct. App. 1940).

Pincite

Opinion

Guerry, J.

On September 10, 1935, Harry E. Youmans obtained a judgment on a note against Mrs. Nora Stewart. The common-law fi. fa. issued thereon was levied on certain property of the defendant in fi. fa. An affidavit of illegality was interposed. It affirmatively appears from the illegality itself that all the grounds therein alleged might have been interposed in the suit on the note. The Code, § 110-501, declares: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have teen put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.”. (Italics ours.) See also Code, § 39-1009, which provides: “If the defendant shall not have been served and does not appear, he may take advantage of the defect by affidavit of illegality; but if he shall have had his day in court, he may not go behind the judgment by an affidavit of illegality.” To allow this defense by affidavit of illegality would be going behind the judgment. Shapiro v. Bank of Graymont, 31 Ga. App. 576 (121 S. E. 520); Murphey v. Smith, 16 Ga. App. 472 (2) (85 S. E. 791); Harbig v. Freund, 69 Ga. 180. The court did not err in sustaining the demurrer to the illegality and dismissing the same.

Judgment affirmed.

Broyles, C. J., and MacIntyre, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Guerry, J.

On September 10, 1935, Harry E. Youmans obtained a judgment on a note against Mrs. Nora Stewart. The common-law fi. fa. issued thereon was levied on certain property of the defendant in fi. fa. An affidavit of illegality was interposed. It affirmatively appears from the illegality itself that all the grounds therein alleged might have been interposed in the suit on the note. The Code, § 110-501, declares: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have teen put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.”. (Italics ours.) See also Code, § 39-1009, which provides: “If the defendant shall not have been served and does not appear, he may take advantage of the defect by affidavit of illegality; but if he shall have had his day in court, he may not go behind the judgment by an affidavit of illegality.” To allow this defense by affidavit of illegality would be going behind the judgment. Shapiro v. Bank of Graymont, 31 Ga. App. 576 (121 S. E. 520); Murphey v. Smith, 16 Ga. App. 472 (2) (85 S. E. 791); Harbig v. Freund, 69 Ga. 180. The court did not err in sustaining the demurrer to the illegality and dismissing the same.

Judgment affirmed.

Broyles, C. J., and MacIntyre, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

7 S.E.2d 582, 61 Ga. App. 773, 1940 Ga. App. LEXIS 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-youmans-gactapp-1940.

Opinion

Related

Cite This Page — Counsel Stack