Rogers v. Felker , 77 Ga. 46 ( 1886 )

Blandford, Justice.

The question in,, this ..case. is,, is a .judgment rendered by a justice.of the peace void, when such justice is related' to one of the parties within the fourth degree of consanguinity, so that the same can be attacked by affidavit :f illegality ?

If the court had no jurisdiction to render the judgment, then it is void; otherwise it is voidable.

The court, as a court, had jurisdiction of the parties and the subject-matter. The justiceis not absolutely inhibited from presiding in the case, under §205 of the' Code referred to, but he may preside by consent of the parties. This is not a question of jurisdiction, but is merely a question of the disability of the justice; and in 62 Ga., 39, this court held that whatever defect there might be, it could not be reached by illegality, and this is decisive of this case, And in the same case the court was inclined to adopt the English rule, the effect of which is to render the judgment of an incompetent judge voidable and not void. 16 Eng. Law and Eq., 63. The law of Alabama is the same as to qualifications of judges as our own. It was there decided that as no waiver appeared on the record, the judgment is only .voidable. 45 Ala., 496. We think this the better ruling, and we hold that the judgment is not void, but only voidable.

Illegality will not lie because the levy is excessive. 57 Ga.,6 8. .

Judgment affirmed.