41 Ga. App. 551 | Ga. Ct. App. | 1930
The exception in this case is to a judgment sustaining a general demurrer to an affidavit of illegality filed on the levy of an execution issued on a general judgment procured in an attachment case.
On February 1, 1927, an attachment affidavit was filed by Manufacturers Finance Acceptance Corporation, alleging that Mrs. L. J. Courson and L. J. Courson were indebted to the plaintiff for a balance due on the purchase-price of a described automobile. On February 5, 1927, an attachment based on the said affidavit was levied on the automobile. The defendants replevied the property
It further appears from the record that on February 21, 1929, a jury rendered a verdict against the traverse, and that on the same day a general judgment was rendered against the original defendants and J. S. Gaskins, security on the replevy bond, for the principal, interest, and attorney’s fees sought to be recovered. On March 1, 1929, an execution was issued on this general judgment, and on October 12, 1929, this execution was levied on certain real estate as the property of J. S. Gaskins. It also appears from'the record that on February 21, 1929, Mrs. L. J. Courson and L. J'. Courson-filed their motion for a new trial, and that on March 6, 1929, they amended the motion by adding a special ground complaining of the belated filing of the declaration in attachment. The court overruled the motion for a new trial. Counsel for tlie plaintiffs in error states in his brief that “this motion was abandoned, as the judgment was a complete nullity.” On November 30, 1929, the defendants filed affidavit of illegality wherein this averment was made: “The defendants in said execution have never had their day in court, in that no declaration in attachment was ever filed in the city court of Nashville, in terms of the law; neither were either of the defendants served with any notice of the filing of any declaration in attachment in said cause; neither did either of the defendants waive the filing of any declaration in attachment or the
The court sustained the following demurrer to the affidavit of illegality:
“1. Said affidavit of illegality, . . when the entire record of the case is considered, sets out no legal ground of illegality.
“2. Plaintiff demurs to and moves to strike said affidavit of illegality in so far as it alleges that no declaration in attachment was ever filed in the city court of Nashville in terms of the law, for the following reasons: (a) Because said defendants filed a replevy bond, thereby appearing in said case, and the issue thereby formed was tried by a jury and a verdict .returned in favor of the plaintiff, without the defendants ever having invoked, by motion or otherwise, a ruling of the court that the said declaration was not filed in his court in terms of the law. (5) Because, after said verdict was returned by said jury and after a judgment was rendered upon such verdict in favor of the plaintiff and against tlie defendants, L. J. Courson and Mrs. L. J. Courson as principals, and J. S. Gaskins as security, the defendants L. J. Courson and Mrs. L. J. Courson filed -a motion for a new trial in said case,” which motion raised the same question made by the affidavit of illegality, to wit, as to the belated filing of the attachment declaration; and the motion for a new trial was overruled, and no objection made to that ruling.
3. “Because, if such' declaration was not filed in this court in terms of the law, such irregularity should have been taken advantage of by demurrer, motion to dismiss, or by some other method recognized by law, prior to said verdict and judgment in said case.”
Plaintiffs in error contend that under the provision of the Civil Code (1910), § 5102, requiring that “the plaintiff shall file his
We do not think that the failure to file the attachment declaration in time was of itself sufficient to nullify the general judgment. We are further of the opinion that in passing upon the demurrer to the affidavit of illegality, the court had the right to consider the fact that the defendants had replevied the property levied on under the attachment execution. See Fitzgerald Granitoid Co. v. Alpha Cement Co., 15 Ga. App. 174 (2), 178 (82 S. E. 774). When a defendant replevies the property attached he is deemed to have notice of the proceedings, and a general judgment may be rendered against him. Hickson v. Brown, 92 Ga. 225, 229 (17 S. E. 1035). “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.” Civil Code (1910), § 5311.
Our conclusion is that where, as in this case, the court has jurisdiction of both the defendants and the subject-matter, the defendants should make some appropriate objection to the belated filing of the declaration in attachment before judgment, and that they can not go behind the judgment by raising the question by affidavit oE illegality.
Judgment affirmed.