Affidavit of illegality proper mode to attack void judgments.

- When the judgment is not merely voidable, but wholly void, as when the court was entirely and under all circumstances without jurisdiction, or when service on the defendant was never effected or waived, nor appearance made, affidavit of illegality is a proper mode of attacking an execution issued under the judgment so obtained. Cochran v. Whitworth, 21 Ga. App. 406, 94 S.E. 609 (1917); Ivey v. Kerce, 42 Ga. App. 336, 156 S.E. 239 (1930).

Unless judgment is absolutely void, affidavit of illegality is never proper method to attack the judgment. Mason v. Fisher, 143 Ga. App. 573, 239 S.E.2d 226 (1977).

Judgment is not invalid in that judgment was rendered in absence of evidence having been adduced upon the trial. Sikes v. Bird, 52 Ga. App. 654, 183 S.E. 825 (1936).

Judgment is not invalid merely because judgment was rendered in absence of one and one's counsel, although their absence was caused by a statement to them by the judge, on the day when the case was expected to be tried, that the court had closed for the day and the case would not be tried that day, but would stand for trial at the next term of court, and when the judge later in the day, without the knowledge of the party or the party's counsel and in their absence, called the case for trial and rendered judgment. Sikes v. Bird, 52 Ga. App. 654, 183 S.E. 825 (1936).

Judgment rendered without jurisdiction over nonresident defendants.

- After a suit was brought against three separate defendants, alleging their residence in three separate counties, and second originals were served upon the two nonresident defendants, and when the resident defendant filed a plea, denying that the resident defendant was ever liable to the plaintiff in any sum, upon which plea the jury found a verdict in that defendant's favor, the court could not proceed to judgment against the two nonresident defendants merely because they had been served with second originals and had failed to file a defense because in such a case it is apparent from the face of the record that the court is without jurisdiction to render judgment against the nonresident defendants, and a judgment so rendered, though by default, is absolutely void and may be attacked by affidavit of illegality. Rhodes v. Southern Flour & Grain Co., 45 Ga. App. 13, 163 S.E. 237 (1932), later appeal, 49 Ga. App. 517, 176 S.E. 121 (1934).

Judgment when service valid though venue improper.

- When there has been an apparently valid service upon a suit which indicates that with service the court has jurisdiction of the defendant's person, the defendant cannot attack the judgment by affidavit of illegality, even though because of the defendant's residence in another county the defendant should not have been sued in the county where the action was brought. Rhodes v. Southern Flour & Grain Co., 45 Ga. App. 13, 163 S.E. 237 (1932), later appeal, 49 Ga. App. 517, 176 S.E. 121 (1934).

Affidavit does not go behind judgment if the affidavit merely alleges that the property advertised was not property that the marshal was authorized to sell. Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133 (1978).

Garnishment judgment by default.

- When a summons of garnishment is issued and served upon the garnishee, who fails to appear in obedience to the summons and to answer either at the first term of the court at which the garnishee is required to appear, or at the next term thereafter, and judgment is rendered against the garnishee for the amount of the judgment previously obtained by the plaintiff against the defendant in the suit, the garnishee cannot attack the judgment by affidavit of illegality for causes anterior to it. Henderson v. Mutual Fertilizer Co., 150 Ga. 465, 104 S.E. 229 (1920).

Judgment by fraud, accident, or mistake.

- If a judgment was rendered against a defendant by fraud, accident, or mistake, or the acts of the adverse party, unmixed with negligence on that party's part, an affidavit of illegality is not the proper remedy. Markham v. Angier, 57 Ga. 43 (1876); Tumlin v. O'Bryan & Bros., 68 Ga. 65 (1881); Nix v. Baxter, 46 Ga. App. 153, 167 S.E. 115 (1932).

Suits prematurely brought.

- If a suit is prematurely brought, objection should be made by demurrer (now motion to dismiss) if the defect appears in the petition. A judgment in favor of the plaintiff in such cases cannot be attacked by an affidavit of illegality. Cooper v. Ricketson, 14 Ga. App. 63, 80 S.E. 217 (1913); Nix v. Baxter, 46 Ga. App. 153, 167 S.E. 115 (1932).

Client cannot by affidavit of illegality go behind consent judgment entered by an attorney at law who has no authority to bind the attorney's client by a compromise agreement. Patterson v. Georgia Gravel Co., 151 Ga. 813, 108 S.E. 237 (1921); Childs v. State Bank, 31 Ga. App. 533, 121 S.E. 254 (1924).

Judgment, which shows on the judgment's face that it is a consent judgment, cannot be attacked collaterally for want of assent. Evans v. Evans, 62 Ga. App. 618, 9 S.E.2d 99 (1940).

Court erred in allowing amendment to affidavit of illegality seeking to attack consent judgment. Evans v. Evans, 62 Ga. App. 618, 9 S.E.2d 99 (1940).

Cause that could have initially been set up as defense.

- Defendant cannot attack judgment for any cause that the defendant could have set up as a defense in the original suit. Mayor of Macon v. Trustees of Bibb County Academy, 7 Ga. 204 (1849); Harbig v. Freund & Co., 69 Ga. 180 (1882); Butler, Stevens & Co. v. Hall, 7 Ga. App. 777, 68 S.E. 331 (1910); Murphey v. Smith, 16 Ga. App. 472, 85 S.E. 791 (1915).

Affidavit of illegality interposed thereto is properly dismissed if all the grounds therein alleged might have been interposed in action on the note. Stewart v. Youmans, 61 Ga. App. 773, 7 S.E.2d 582 (1940).

Setting up defense which had been settled by verdict.

- Defendant cannot by affidavit of illegality go behind judgment by setting up defense of tender of debt, which issue was settled by verdict. The defendant's remedy would be a review of the case by a motion for a new trial. Drake v. Ludden & Bates S. Music House, 46 Ga. App. 745, 169 S.E. 213 (1933).

Defendant in execution may not by affidavit of illegality make the defense of payment of the debt, but only the payment of the execution itself. Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668 (1940).

Alleging verdict not authorized by pleadings or judgment not following verdict.

- Defendant cannot go behind judgment for purpose of alleging that verdict was not authorized by the pleadings or that the judgment did not follow the verdict. Bird v. Burgsteiner, 108 Ga. 654, 34 S.E. 183 (1899); Elliott v. Wilks, 16 Ga. App. 466, 85 S.E. 679 (1915).

Raising questions overruled in trial court and not appealed.

- Affidavit of illegality based on the ground that the garnishment was proceeding illegally because it was based on a void judgment was properly dismissed by a municipal court since it appeared that the affidavit sought to raise substantially the same questions raised by the defendant in a motion to set aside the judgment, which motion had been overruled, and the judgment overruling the motion was not appealed. Clary v. Citizens Loan & Inv. Co., 65 Ga. App. 859, 16 S.E.2d 782 (1941).

Alleging that trial court sat in improper place.

- Defendant, having had the defendant's day in court, could not go back on the judgment and attack by affidavit of illegality the prior justice court proceedings merely upon the ground that such court during the pendency of the case was not sitting at a place required by law. Bryant v. Connell, 50 Ga. App. 320, 178 S.E. 157 (1935).

To deny that judgment ought to have been rendered on account of preexisting facts is to go behind the judgment. Tuff v. Loh, 38 Ga. App. 526, 144 S.E. 670 (1928).

If defects in judgment amount only to irregularities, the judgment cannot be attacked by illegality by virtue of this section. Brantley v. Greer, 71 Ga. 11 (1883).

When defendant attempts to go behind judgment as means of delay only, the court may award damages for the delay. Drake v. Ludden & Bates S. Music House, 46 Ga. App. 745, 169 S.E. 213 (1933).

Cited in Kite v. Lumpkin, 40 Ga. 506 (1869); Bland v. Strange, 52 Ga. 93 (1874); Southern Ry. v. Daniels, 103 Ga. 541, 29 S.E. 761 (1897); Fitzgerald Granitoid Co. v. Alpha Portland Cement Co., 15 Ga. App. 174, 82 S.E. 774 (1914); Orr v. Chattooga County Bank, 145 Ga. 248, 88 S.E. 978 (1916); Hancock v. Tifton Guano Co., 19 Ga. App. 185, 91 S.E. 246 (1917); Ragan-Malone Co. v. Padgett, 33 Ga. App. 111, 125 S.E. 605 (1924); Barnes v. West Publishing Co., 33 Ga. App. 626, 127 S.E. 668 (1925); Owen v. Federal Land Bank, 37 Ga. App. 394, 140 S.E. 425 (1927); Flanigan v. Hutchins, 39 Ga. App. 220, 146 S.E. 500 (1929); Leath v. Hardman, 43 Ga. App. 270, 158 S.E. 453 (1931); Payne v. Brown Constr. Co., 44 Ga. App. 592, 162 S.E. 410 (1932); Swords v. Roach, 175 Ga. 774, 166 S.E. 185 (1932); Rhodes v. Southern Flour & Grain Co., 45 Ga. App. 13, 163 S.E. 237 (1932); Oliver v. Rutland, 48 Ga. App. 326, 172 S.E. 660 (1934); Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668 (1940); Strickland v. Arnall, 76 Ga. App. 439, 46 S.E.2d 195 (1948); Hamilton v. Hamilton, 80 Ga. App. 750, 57 S.E.2d 301 (1950); Grading, Inc. v. Cook, 211 Ga. 749, 88 S.E.2d 364 (1955); Aetna Cas. & Sur. Co. v. Williams, 131 Ga. App. 376, 206 S.E.2d 91 (1974); West Point Pepperell, Inc. v. Springfield, 238 Ga. 655, 235 S.E.2d 24 (1977); Rawlins v. Busbee, 169 Ga. App. 658, 315 S.E.2d 1 (1984).

Am. Jur. 2d.

- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 269 et seq.

C.J.S.

- 33 C.J.S., Executions, § 288 et seq.

ALR.

- Estoppel of or waiver by parties or participants regarding irregularities or defects in execution or judicial sale, 2 A.L.R.2d 6.