Stewart v. Youmans

The court did not err in sustaining the demurrer and dismissing the affidavit of illegality.

DECIDED FEBRUARY 29, 1940. On September 10, 1935, Harry F. Youmans obtained a judgment on a note against Mrs. Nora Stewart. The common-law fi. fa. issued thereon was levied on certain property of the defendant in fi. fa. An affidavit of illegality was interposed. It affirmatively appears from the illegality itself that all the grounds therein alleged might have been interposed in the suit on the note. The Code, § 110-501, declares: "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." (Italics ours.) See also Code, § 39-1009, which provides: "If the defendant shall not have been served and does not appear, he may take advantage of the defect by affidavit of illegality; but if he shall have had his day in court, he may not go behind the judgment by an affidavit of illegality." To allow this defense by affidavit of illegality would be going behind the judgment. Shapiro v. Bank ofGraymont, 31 Ga. App. 576 (121 S.E. 520); Murphey v.Smith, 16 Ga. App. 472 (2) (85 S.E. 791); Harbig v.Freund, 69 Ga. 180. The court did not err in sustaining the demurrer to the illegality and dismissing the same.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.