McLaren v. Beall

Trippe, Judge. 1. The affidavit of illegality in its recitals or statements, before the specific grounds were set forth, showed that Peter McLaren, against whom the judgment was obtained, as administrator of Davis Pace, was sued as such, had acted as administrator, and was acting administrator at the time the judgment was obtained. The ground then taken is merely that he was not a legal administrator. When a judgment is thus obtained against one who it was admitted was filling the office of an administrator, and who, in fact, was an administrator, it is not sufficient to state in the affidavit of illegality, whereby the judgment is sought to be arrested, or set aside, that such person was not a legal administrator. An issuable statement should have been made; that is, it should have been set forth, wherein consisted the illegality of his appointment. Notice should be given by the pleadings to the plaintiff of what the affiant intended to rely on to show that the judgment was not a judgment against the estate, and what it was that thus made the representative who had been sued an illegal representative. The affidavit does not state that there had been any judgment vacating the title of the administrator, or declaring his right to the office void. 2. The same may be said of the other grounds, to-wit: that the “ execution issued upon a bogus judgment, which wa¡s not obtained after a due course of law, but was obtained in cham [635] bers, contrary to the statute in such cases made and provided, and by fraud.” This is too general and indefinite. It does not show that the judgment is void, and the facts that make it so. As to there being no right to attack the validity of a judgment by illegality. See 7 Georgia, 204; 8 Ibid., 143; 11 Ibid., 137; 22 Ibid., 570. The demurrer to both these grounds was properly sustained. 3. The jury gave twenty per cent, damages to the plaintiff. Was this right under the evidence? Waiving the question whether damages can be given against an administrator in an issue formed on an affidavit of illegality, we do not think the damages in this ease can be sustained under the testimony. The third ground in the affidavit is, that $3,000 00 had been paid on the debt since the judgment, and no credit given therefor. Peter McLaren, the former administrator, on his direct examination, testified that he had paid that amount on the debt, and supposed the fi. fa. ought to be credited with it, but it was not. It is true that on his cross-examination, upon being shown the original decree and the statement of the account on which it was founded, it appeared that the credit had been allowed before the decree was taken, and the witness then admitted that fact. He also stated that up to that time he believed that the payment he made ought to have been credited on the execution. Here, then, was an administratrix who set up that a large payment on a judgment had been made by her predecessor in the administration, and the fact was sworn to by the former administrator. He admitted on the trial, after he had so testified, that he was mistaken, but had just then discovered it. This was sufficient to relieve the affiant, the then representative of the estate, from the charge of having interposed the illegality for delay only. Judgment reversed.