Parker v. Jennings
Supreme Court of Georgia
Illegality, from Webster county. Decision by Judge Kiddoo, March Term, 1858. Defendant Parker made an affidavit of illegality to the execution in favor of Jennings against him, that it was proceeding illegally, because he had no notice of the pendency of the suit upon which the judgment was founded, until execution issued against him; that he resided, at the time the suit was commenced, in Monroe county, and was never legally served.
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Illegality, from Webster county. Decision by Judge Kiddoo, March Term, 1858. Defendant Parker made an affidavit of illegality to the execution in favor of Jennings against him, that it was proceeding illegally, because he had no notice of the pendency of the suit upon which the judgment was founded, until execution issued against him; that he resided, at the time the suit was commenced, in Monroe county, and was never legally served. There was an entry of service on the writ, by the Sheriff, who stated that he left a copy of it at defendant’s most notorious place of abode. Upon motion, the…
1Opinion of the Court
By the Court.
Lumpkin J.
delivering the opinion.
The single question in this case is, whether, when the defendant has not been served in a case, he can get rid of the judgment by affidavit of illegality.
This Court has repeatedly held, that upon an affidavit of illegality, you cannot go behind the judgment; and moreover, that the validity of the judgment itself cannot be attacked by such a proceeding. But it will be found, upon examination of the cases, it was where the judgment was voidable only, and not absolutely void. Of course, the judgment being good, until set aside, where it is erroneous…
2Cited by7 opinions
- Hobby v. BunchSupreme Court of Georgia · 1889
- Cherry v. McCutchenCourt of Appeals of Georgia · 1942
- Robinson v. Bryson & SonsCourt of Appeals of Georgia · 1932
- Tillman v. DavisSupreme Court of Georgia · 1859
- Lott v. LottSupreme Court of Georgia · 1950
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