Tumlin v. O'Bryan & Bros. , 68 Ga. 65 ( 1881 )

Crawford, Justice.

1. The only question made by the bill of exceptions in this case is, whether an affidavit of illegality is the proper remedy to arrest an execution and set aside a judgment, upon the ground that at the time of its rendition by the court there was a plea of file and undisposed of.

The defendant shows that he was in court with a defense; if, therefore, the court rendered an illegal judgment against him, over his defense, his remedy was by writ of error.

If the judgment was rendered against him by fraud, accident or mistake, or the acts of the adverse party, unmixed with negligence on his part, his remedy was by motion to vacate the judgment, or bill in equity for relief. That an affidavit of illegality is not the proper remedy in such a case is too manifest for doubt. Code, §§3671, 3595; 63 Ga., 510; 64 Ga., 565.

2. The defendant in error insists upon damages as his clear legal right in this case; and this court being of opinion that the same could have been brought up by the defendant for delay only, the judgment is affirmed, with ten per cent, damages thereon.

Judgment affirmed.