Universal C. I. T. Credit Corp. v. Pritchett

Court of Appeals of Georgia

Universal C. I. T. Credit Corp. v. Pritchett

121 S.E.2d 793, 104 Ga. App. 422, 1961 Ga. App. LEXIS 704

CourtCourt of Appeals of Georgia

DecidedSeptember 22, 1961

Docket39057

StatusPublished

Cited by2 cases

This text of 121 S.E.2d 793 (Universal C. I. T. Credit Corp. v. Pritchett) 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.

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Universal C. I. T. Credit Corp. v. Pritchett, 121 S.E.2d 793, 104 Ga. App. 422, 1961 Ga. App. LEXIS 704 (Ga. Ct. App. 1961).

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Opinion

Carlisle, Presiding Judge.

1. An affidavit of illegality may not go behind the judgment or other proceeding upon which [423]*423the fi. fa. is based. Duvall v. Barron, 14 Ga. App. 304 (80 SE 701); Childs v. State Bank of Chicago, 31 Ga. App. 533 (121 SE 254); Courson v. Manufacturers Finance Acceptance Corp., 41 Ga. App. 551 (153 SE 624). Illegality to executions is a purely statutory proceeding, and no equitable defenses which attempt to go behind the judgment may be allowed. Cf. Bowen v. Groover, 77 Ga. 126.

Decided September 22, 1961. L. Hugh Kemp, Pittman, Kinney & Pope, for plaintiff in error. Mitchell & Mitchell, contra.

2. Accordingly, where in this case the affiant in his illegality to the levy of an execution issued on the foreclosure of a conditional-sale contract covering a 1960 Ford truck sought to contend that under the terms of the contract an insurance company, not a party to the case, was liable to the plaintiff in fi. fa. instead of the defendant, because the defendant had become disabled, which disability, it was contended, obligated the insurance company to assume the monthly payments due under the contract, such defense, if available at all, could have been raised by the timely filing of a traverse to the affidavit to foreclose. After the judgment of foreclosure, it was too late to raise such a defense by affidavit of illegality, and the trial court erred in overruling the plaintiff’s demurrers to the affidavit as amended. See Allen v. Duval Motors Co., 36 Ga. App. 336 (136 SE 479); Hamilton v. Hamilton, 80 Ga. App. 750 (57 SE2d 301); Tanner v. Wilson, 183 Ga. 53 (187 SE 625).

Judgment reversed.

Nichols and Eberhardt, JJ., concur.

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Carlisle, Presiding Judge.

1. An affidavit of illegality may not go behind the judgment or other proceeding upon which [423]*423the fi. fa. is based. Duvall v. Barron, 14 Ga. App. 304 (80 SE 701); Childs v. State Bank of Chicago, 31 Ga. App. 533 (121 SE 254); Courson v. Manufacturers Finance Acceptance Corp., 41 Ga. App. 551 (153 SE 624). Illegality to executions is a purely statutory proceeding, and no equitable defenses which attempt to go behind the judgment may be allowed. Cf. Bowen v. Groover, 77 Ga. 126.

Decided September 22, 1961. L. Hugh Kemp, Pittman, Kinney & Pope, for plaintiff in error. Mitchell & Mitchell, contra.

2. Accordingly, where in this case the affiant in his illegality to the levy of an execution issued on the foreclosure of a conditional-sale contract covering a 1960 Ford truck sought to contend that under the terms of the contract an insurance company, not a party to the case, was liable to the plaintiff in fi. fa. instead of the defendant, because the defendant had become disabled, which disability, it was contended, obligated the insurance company to assume the monthly payments due under the contract, such defense, if available at all, could have been raised by the timely filing of a traverse to the affidavit to foreclose. After the judgment of foreclosure, it was too late to raise such a defense by affidavit of illegality, and the trial court erred in overruling the plaintiff’s demurrers to the affidavit as amended. See Allen v. Duval Motors Co., 36 Ga. App. 336 (136 SE 479); Hamilton v. Hamilton, 80 Ga. App. 750 (57 SE2d 301); Tanner v. Wilson, 183 Ga. 53 (187 SE 625).

Judgment reversed.

Nichols and Eberhardt, JJ., concur.

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121 S.E.2d 793, 104 Ga. App. 422, 1961 Ga. App. LEXIS 704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/universal-c-i-t-credit-corp-v-pritchett-gactapp-1961.

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