Hancock v. Tipton Guano Co. , 19 Ga. App. 185 ( 1917 )

Bloodworth, J.

1. A ground of an affidavit of illegality that “the execution was issued, to the best of affiant’s knowledge and belief, before the overruling of a motion for new trial in the case,” is without merit. Civil Code, § 6020. Besides, this ground is not verified positively and was properly stricken. Sprinz v. Vannucki, 80 Ga. 774 (6 S. E. 816).

2. “If the defendant has had his day in court, he can not go behind the judgment by an affidavit of illegality.” Civil Code, § 5311; Tumlin v. O’Bryan, 68 Ga. 65; Brantley v. Greer, 71 Ga. 11.

3. “Where a court has jurisdiction, it is to be presumed that it had before it pleadings and evidence authorizing the verdict rendered.” Bedingfield v. First National Bank, 4 Ga. App. 197 (3), 204 (61 S. E. 30).

4. Where an affidavit of illegalityxis filed, the grounds of which are.absolutely without merit, and at thé trial term of the cause the defendant in fi. fa. is excused from the court for providential cause, it is not error requiring a reversal that afterwards and during the term the. affidavit of illegality, on motion of plaintiff in fi. fa., and over objection of the defendant in fi. fa. (who neither offered to amend nor made any other motion), is dismissed on the ground that the grounds of illegality are insufficient in law. Injury must result before there is error. Goodman v. Brown, 17 Ga. App. 778 (88 S. E. 593).

5. blot being fully convinced that this case was appealed for delay only, the request of the defendant in error that ten per cent, damages be assessed against plaintiff in error is refused.

Judgment affirmed-.

Broyles, P. J., and Jenkins, J., concur.