Ansley Co. v. O'Byrne , 120 Ga. 618 ( 1904 )

LamaR, J.

(After stating the foregoing facts.)

The claimant may have a legal title, but he may have acquired it from a defendant against whom the judgment had been previously rendered. When, therefore, a levy is made, the question is, not to whom does the land belong, but is it subject to the execution ? This being the issue, the claimant is interested in being able to attack the validity of the ñ. fa., to the end that he may have the levy dismissed; and for this purpose he is permitted to show that the judgment is void, or, if ever valid, that it has been discharged. In fact, he can make any attack- upon the process levied which the defendant therein may then make. A defendant who has had Ms day in court can not go behind the judgment for the purpose of showing that it ought never to have been rendered, nor will a claimant be allowed any such right. Horne v. Powell, 88 Ga. 639 ; New England Mortgage Co. v. Watson, 99 Ga. 735; Osborne v. Rice, 107 Ga. 282. If, then, this be the test it is manifest that the court below properly refused the motion to dismiss the levy on the present execution. Prima facie it was good against the defendant. It issued from a court of general jurisdiction, with all the presumptions in favor of the validity and regularity of the judgment on which the fi. fa. was based. If the defendant had filed an affidavit of illegality, it would not have been sufficient to prove, as here, that she had “ never plead.” It would have been necessary to show that there was no waiver of the alleged want of jurisdiction. LeMaster v. Orr, 101 Ga. 764. This presumption in favor of a writ issuing from a court of general jurisdiction can in no event be overcome by the testimony of a third person that the defendant did not plead; that he was her agent and would have known it if she had done so. Even if this negative testimony be sufficient to establish her failure to plead, it does not establish that there was no waiver, and, according to the Civil Code, § 5079, while one can not give jurisdiction, it may be waived so far as the parties themselves are concerned. If, therefore, Mrs. Ansley waived any want of jurisdiction in Fulton superior court, the judgment therein was valid against her. The claimant could not attack the execution on grounds which the defendant in fi. fa. could not then have made. In allowing it to proceed, the rights of third persons were not affected. If the land was in fact her property, the claimant was not injured. If it had been sold by the defendant to the claimant after the rendition of the judgment, and the lien had attached, the claimant took subject thereto, and could not complain if the fi, fa. was allowed to proceed. If the claimant had a title older than the lien, or one derived from another source, on proof of that fact the verdict should have been not subject.

Although Mrs. Ansley was a resident of Lee county, she could have waived the want of jurisdiction of Fulton superior court. Besides this, there are cases in which the superior court has jurisdiction over persons residing in other counties; and these two facts, coupled with the presumption, in favor of the regularity of judgments issuing from a court of general jurisdiction, made it necessary for the claimant to attack the validity of the fi. fa. by the production of the record. There was no error in The rulings complained of; the plaintiff made out a prima facie case that the property was subject to the execution; the claimant’s title was based upon a tax deed void because of an excessive levy ; and the judgment is Affirmed.

All the, Justices concur.