Williams v. Hinson

85 S.E. 868, 143 Ga. 740, 1915 Ga. LEXIS 602

• Court: Supreme Court of Georgia
• Decided: July 20, 1915
• Status: Published

Opinion

Beck, J.

The plaintiff filed a petition to enjoin the enforcement of an execution issued from a justice’s court, contending that the execution and the judgment upon which it was based were void, because the judgment was rendered by the justice at a time when the court could not legally be held, inasmuch as another date had properly, and in accordance with the statute, been fixed and appointed for the holding of the court. The petition, at the appearance term of the superior court, was dismissed upon demurrer. Meld: Without discussing the question as to whether or not the judgment was void as contended by petitioner, the court did not err in sustaining the demurrer to the petition. If the execution and judgment referred to were void for the reasons assigned, the petitioner had an adequate remedy at law; for he could have resisted the enforcement of the execution by filing an affidavit of illegality. Planters Loan and Savings Bank v. Berry, 91 Ga. 264 (18 S. E. 137) ; Hilson v. Kitchens, 107 Ga. 230 (33 S. E. 71, 73 Am. St. R. 119) ; Harbig v. Freund, 69 Ga. 180.

Judgment affirmed.

All the Justices concur.