Orr v. Chattooga County Bank
Supreme Court of Georgia
Illegality of execution. Before Judge Wright. Chattoogasuperior court. March 9, 1915. An execution in favor of the Chattooga County Bank against M. W. Wimpee and W. B. Orr was levied on two mules as the property of Orr. He filed an affidavit of illegality. It denied service, waiver, or appearance and pleading by the affiant, and alleged that “the pretended entry of service was never made or authorized by the officer whose name appears as having made the same.”
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Illegality of execution. Before Judge Wright. Chattoogasuperior court. March 9, 1915. An execution in favor of the Chattooga County Bank against M. W. Wimpee and W. B. Orr was levied on two mules as the property of Orr. He filed an affidavit of illegality. It denied service, waiver, or appearance and pleading by the affiant, and alleged that “the pretended entry of service was never made or authorized by the officer whose name appears as having made the same.” A demurrer was filed on the grounds, (a) that the affidavit of illegality disclosed a return of service by an officer, and the proper…
1Opinion of the CourtLumpkin, J.
(After stating the foregoing facts.) By the Civil Code (1910), §.5311, it is declared: “If the defendant has not been served, and does not appear, he may take advantage of the defect by affidavit of illegality; but if he has had his day in court, he can not go behind the judgment by an affidavit of illegality.” And by section 5566 it is declared: “The entry of the sheriff or any officer of the court, or his deputy, may be traversed by the defendant at the first term after notice of such entry is had by him, and before pleading to the merits; but this shall not deprive the defendant of his…
2Cases cited3 opinions
- Dozier v. LambSupreme Court of Georgia · 1877
- O'Bryan & Bros. v. CalhounSupreme Court of Georgia · 1881
- Stone v. RichardsonSupreme Court of Georgia · 1885
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- Clements v. Sims T v. Inc.Court of Appeals of Georgia · 1962
- Southern States Phosphate & Fertilizer Co. v. ClarkSupreme Court of Georgia · 1919
- Grading, Inc. v. CookSupreme Court of Georgia · 1955