Ivey v. Kerce

1. It is the general rule that a defendant in fi. fa. can not go behind the judgment by an affidavit of illegality, where he has been properly served or has made actual appearance. Civil Code (1910), § 5311. But where the judgment is not merely voidable, but wholly void, as where the court was entirely and under all circumstances without jurisdiction, affidavit of illegality is always a proper mode of attacking an execution issued on the -judgment so obtained. Harrell v. Davis Wagon Co., 140 Ga. 127 (78 S. E. 713); Williamson v. Williamson, 154 Ga. 788 (115 S. E. 805) ; Cochran v. Whitworth,…