Murphey v. Smith
Court of Appeals of Georgia
Affidavit of illegality; from city court of Floyd county — Judge Eeece. July 38, 1914.
1Opinion of the CourtBroyles, J.
1. No forthcoming bond is required upon the filing of an affidavit of illegality interposed to a levy on realty. The provisions of section 5305 of the Civil Code apply to levies upon personalty only. This section of the code and section 6040 should be construed together.
2. A defendant can not, by affidavit of illegality, attack a judgment for any cause that he could have set up as a defense in the original suit. Civil Code, § 5311; Butler v. Hall, 7 Ga. App. 777 (68 S. E. 331). In this case the alleged lack of service upon a codefendant should have been pleaded in the original suit, and was…
2Cases cited3 opinions
- Evans v. Rounsaville & BrotherSupreme Court of Georgia · 1902
- Ross v. WorshamSupreme Court of Georgia · 1880
- Butler, Stevens & Co. v. HallCourt of Appeals of Georgia · 1910
3Cited by6 opinions
- Stripling v. Farmers & Merchants BankCourt of Appeals of Georgia · 1985
- In Re TrammellDistrict Court, N.D. Georgia · 1925
- George v. ClarySupreme Court of Georgia · 1935
- Foster v. Watkins Co.Court of Appeals of Georgia · 1924
- Stewart v. YoumansCourt of Appeals of Georgia · 1940
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