404 S.E.2d 446 | Ga. Ct. App. | 1991
In June of 1989 appellee Edith Woodall Lee obtained a fi. fa. fo: $96,807 in the Superior Court of Lumpkin County for alimony am child support arrearage, effecting a levy on real property owned b:
On December 21, 1989, Hunt filed a second affidavit of illegality in Lumpkin County, advancing essentially the same grounds concerning the inaccuracy of the accounting plus a new allegation that the Hall County action had been obtained by mistaken testimony and fraud. Mrs. Lee’s motion to dismiss the second affidavit of illegality on the ground of res judicata was granted, with a finding that the second illegality was filed only for the purpose of delay. This appeal follows. Held:
So far as can be determined from the enumerations of error and the briefs of the parties, the only new allegations raised in appellant’s second affidavit of illegality deal with matters involved in the Hall County litigation, the proceedings of which are not included in the record before us. In any case, matters in that case have been concluded, for that judgment was not directly appealed or heard by discretionary appeal. Since no record of these proceedings is attached, all enumerations pertaining to those proceedings cannot be reviewed. Rowe v. Rowe, 195 Ga. App. 493 (1) (393 SE2d 750).
As to the dismissal of the second affidavit of illegality, we find no reversible error. Appellant was required by OCGA § 9-13-120 to state a cause of illegality. Under OCGA § 9-13-128, “[wjhenever an illegality is dismissed for insufficiency . . . plaintiff in execution may proceed as is provided in cases where claims are dismissed or withdrawn.” “Georgia law provides that ‘(a) judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ OCGA § 9-12-40.” Helmuth v. Life Ins. Co. of Ga., 194 Ga. App. 685
Judgment affirmed.