Cobb v. Pitman , 49 Ga. 578 ( 1873 )

Warner, Chief Justice.

This was an affidavit of illegality to an execution, the defendant alleging therein that he was never served with any process and copy of the declaration in said case, that he was at the time said suit was brought and up to the time the judgment is claimed to have been rendered, a citizen of Georgia, residing in the county of Eandolpli, in said State, and not in the comity of Whitfield, and the Superior Court of the county of Whitfield had no authority to render such a judgment against him. The plaintiff demurred to the affidavit, which demurrer was sustained by the Court, and the defendant excepted. The 3621st section of the Code declares that, if the defendant has not been served and does not appear, he may take advantage of the defect by affidavit of illegality, but if he has had his day in Court, he cannot go behind the judgment by an affidavit of illegality. To enable the defendant, by an affidavit of illegality, to go behind the judgment under this provision of the Code, he should not only swear that he was not served with a copy of the declaration and process in the case, but should also swear that he did not appear in the case and have his day in Court before the rendition of the judgment against him. Although he may not have been served with a copy of the declaration and process, still, he may have waived the same by an acknowledgment of service, or he may have appeared and pleaded to the merits of the case, as provided by the 3409th section of the Code, and thus have had his day in Court. Besides, the defendant might have been sued in the county of Whitfield, notwithstanding he resided in the county of Eandolph, if he was a co-partner, or joint obligor, or joint promisor, with one who did reside in the former county, or if he was an indorser of a promissory note, the maker of which resided in Whitfield county, and if so sued in Whitfield county, and pending the suit the other party had died, the plaintiff suggesting his death on the record, might have obtained the judgment against the defendant as provided by the 3396th section of the Code.

The allegation that the Superior Court of the county of Whitfield had no authority to render a judgment against him, was a conclusion of law, which it was not competent for the defendant to decide for himself. When a judgment is rendered by a Court of competent jurisdiction, the presumption of tbe law is that it was rightfully rendered, unless the contrary appears on the face thereof. When a defendant seeks, by an affidavit of illegality, to go behind tbe judgment, and attack it on the ground that he has not had his day in Court, or that the Court in rendering the judgment had no jurisdiction of his person for that purpose, as prescribed by law, be should clearly and fully comply with the provisions of that section of the Code which authorizes him to do so. In our judgment, there was no error in sustaining the demurrer to the defendant’s affidavit of illegality in this case.

Let the judgment of the Court below be affirmed.