Brantley v. Greer

71 Ga. 11 | Ga. | 1883

Hall, Justice.

1. Tins affidavit of illegality, so far as it has a semblance of merit, is an attack upon the decree or judgment on which the execution in question issued. Unless the judgment is void, this is not the proper mode of setting it aside. 8 Ga., 143 ; 11 Ib., 137. If the defects alleged to exist amount only to irregularities, they should he corrected by a motion for that purpose made in the court which rendered it. 51 Ga., 323; 54 Ib., 494.

If the defendant has had his day in court, he cannot go behind the judgment by an affidavit of illegality. Code, §3671.

2. .Where a proceeding originates in the court of ordinary, and calls upon executors and administrators to account, a citation is all the pleading that is necessary. Code, §§2598,2599. And it would seem that this proceeding is a substitute for a bill to account and settle in equity, as that court has, by express enactment, concurrent juris-• diction for the purpose. Ib., §2600.

3. The complaint that the decree in this instance .is-indefinite and uncertain, is not well founded. It is clear and definite as to all its material parts; indeed, it is redundant in finding what assets are in the defendant’s hands belonging to her intestate. The amount found to be due the plaintiff was directed to be levied upon the effects of the intestate in the hands of the defendant unadministered.. The judgment was not against the property specified in the decree, and the execution was properly issued against ■ the goods, etc., of the intestate in the hands of the defendant to be administered, without setting forth, as was done in the decree, of what these goods, etc., consisted. All this part of the decree was rendered by the presiding judge. There was an auditor in the case, who was related to. the judge within the fourth degree of affinity, and a j udge^ro Jiao vice was agreed upon to decree the auditor compensation for his services, which he did. These particulars were embodied in the same decree, and that was signed both by the presiding judge and the judge pro hac vice. The part that each took in the proceeding appears upon the face of the decree. This course was certainly unusual, and we are inclined to the opinion that the particularity observed was unnecessary. The compensation of the auditor was a part of the necessary costs in the case, and the auditor was, quoad hoe, an officer of the court. We know of no law which disqualifies a judge, who happens to be related within the degrees mentioned to such an auditor, from awarding him costs in the case. This ground of disqualification is applicable alone to parties, and the auditor is no party to the cause. Code, §205. Besides, this execution did not issue for the auditor’s cost, but was issued only for the amounts awarded to the plaintiff in the suit, and this question as to the auditor’s rights was not before the lower court, nor is it before this. The decree attempted to be set aside by this proceeding, so far as it affects the plaintiff, and so far as it is before us, was regularly entered up and signed by the judge of the superior court presiding in the cause.

The affidavit of illegality was properly disposed of by sustaining the demurrer.

Judgment affirmed.