Parker v. Rosenheim & Co.
Supreme Court of Georgia
Affidavit of illegality. Before Judge Sweat. Coffee superior court. March term, 1895. An execution in favor of Rosenheim & Co. against Parker, based on a judgment of the superior court of Coffee county, of November 13, 1889, was levied, October 11th, 1892, on property of the defendant. He interposed an affidavit of illegality on December 30th, 1892, in which he-swore that the execution “is proceeding against deponent illegally, for that no part of said amount is due.”
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Affidavit of illegality. Before Judge Sweat. Coffee superior court. March term, 1895. An execution in favor of Rosenheim & Co. against Parker, based on a judgment of the superior court of Coffee county, of November 13, 1889, was levied, October 11th, 1892, on property of the defendant. He interposed an affidavit of illegality on December 30th, 1892, in which he-swore that the execution “is proceeding against deponent illegally, for that no part of said amount is due.” At the-March term, 1894, of the superior court, the defendant traversed the return of the- sheriff upon the declaration in the…
1Opinion of the Court
Callaway, Judge.
The illegality and the traverse to the sheriff’s return of service, though heard together by consent, were separate and distinct proceedings. The affidavit of. illegality is entirely without merit and fatally defective. It does not allege that the defendant has not been served, nor that he did not appear, nor any other fact showing that he had not had his day in court, and without these allegations he cannot go behind the judgment. The court committed no error in dismissing it on motion.
The traverse to the sheriff’s return of service contained all the essential elements of…
2Cases cited1 opinion
- Dozier v. LambSupreme Court of Georgia · 1877
3Cited by10 opinions
- Felker v. JohnsonSupreme Court of Georgia · 1940
- Phillips v. WaitSupreme Court of Georgia · 1899
- Spence v. Manufacturers Finance Acceptance Corp.Court of Appeals of Georgia · 1933
- Deich v. American Discount Co.Supreme Court of Georgia · 1963
- Busey v. MilamCourt of Appeals of Georgia · 1957
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