Harbig v. Freund & Co.

Crawford, J ustice. The levy of a fi. fa. in favor of the defendants in error was met by the plaintiff in error in this case, with an affidavit of illegality, alleging the judgment on which'it was founded void upon the following grounds: (1.) Because the justice court of the 398th district, G. [183] M., from which the said ft. fa. issued, had no jurisdiction over him when the judgment was rendered, as he was not a resident of that district, but of the I22d. (2.) Because the judgment was rendered at a place which was not the place legally appointed for holding the court in the 398th district, G. M. (3.) Because the justice court for the 398th district, G. M., did not sit monthly at fixed times and places as required by the constitution of 1877. The case was appealed by consent to the superior court and there submitted to the judge, without a jury, on the law and facts, the latter having been agreed upon, and reduced to writing to be used on the trial. Upon the calling of the case, and after the reading of the affidavit, plaintiff’s counsel demurred to the same upon the ground that it sought to go behind the judgment, the record of which showed that the defendant had been sued May the 14th, 1879, t^e record reciting him to be of the .city of Augusta, Richmond county, and the 398th district, G. M. In connection with this demurrer, so much of the agreed statement of facts as took the place of the record of the case was submitted to the court, and were as follows: That the suit was brought May the 14th, 1879, in the justice court for the 398th district, G. M.; that the defendant was personally served on that day; that the summons recited the fact that the defendant was of the said 398th district of Augusta, Richmond county; that the said summons was made returnable to the justice court for the said district, to be held on the 4th day of June, 1879, in the May building, on Jackson street, the court house for that district; that the defendant did not appear or defend, and judgment was rendered by default against him, which was followed by execution April 1, 1882. There being no dispute between the parties as to the foregoing facts, the judge, after argument had, dismissed the affidavit of illegality, and the defendant excepted. 1. One of the errors complained of in this ruling is [184] that the judge refused, upon the admission of the above facts, to allow defendant’s counsel to show by aliunde testimony the want of jurisdiction in the court rendering the judgment, and upon which rested the grounds taken in the affidavit of illegality. We hold that the court committed no error in that ruling. For when it is examined, it will be seen that it is but an effort to go behind the judgment and set up matters of defence to its rendition, which, if they really existed, should have been insisted on by pleas and proof at the proper time. There can be nothing better settled than that where the defendant has been served and thereby had, or could have had, his day in court, he is conclu-ded. Code, §3671. It is also as well settled that upon an affidavit of illegality to the execution, the validity of the judgment cannot be attacked or inquired into. 8 Ga., 143 ; 11 Ib., 137; 59 Ib., 606. Any defence arising.before judgment must be pleaded before judgment. 57 Ga., 608. Todeny that a judgment ought to have been rendered on account of pre-existing facts, is to go behind the judgment; this cannot be done where there has been service or appearance. 63 Ga., 510. Authorities need not be multiplied on this point. And these are not to be confounded with those cases where illegality has-been allowed to go behind the judgment, because the want of jurisdiction was apparent upon the record or the face of the papers. In this case, however, the jurisdiction of the person and subject-matter was in the court, under the general and local laws governing in the city of Augusta. The civil jurisdiction, as appears by statute, and not shown to have been repealed, of each of the justices of the peace for the 600th, the 398th, the I22d and the 120th districts in the county of Richmond, was made to extend over the whole corporate limits of Augusta; and each of these justices might issue process, award judgment and issue execution [185] in all cases of debt or contract not exceeding in amount the ordinary jurisdiction of magistrate’s limits, where the defendant resided in any part of the city of Augusta, in the same manner as if the defendant resided in the same district with the justice. Moreover, it appears that to these justices was given the power by local law to hold their courts at any place in said city which they might select. 2. But evidently the main ground relied on as controlling the case is, that the justice court for this district did not sit monthly at fixed times and place as required by the constitution of 1877. It is true that Article VI of the constitution deals with the subject-matter of justices of the peace, their jurisdiction, courts, etc., and in section 7, paragraph 2, it is provided that they shall sit monthly at fixed times and places; yet it will be seen in section 9, paragraph 1, that the jurisdiction, powers, proceedings and practice of all courts, or officers invested with judicial powers (except city courts) of the same grade .or class, so far as regulated by law, and the force and effect of the process, judgment and decree by such courts severally should be uniform, and that such uniformity should be established by the general assembly. The act establishing this uniformity was passed July 21st, 1879, whilst the judgment we are considering was rendered June 4th, 1879, thus antedating by several weeks the passage of the law. And in this it differs- from the case of Johnson vs. Heitman, decided at September term, 1S81, which was tried in one of the justices’ courts in the city of Savannah, in May, 1880, nearly twelve months after the act had been passed. These justices’ courts in the cities of Savannah and Augusta had local laws which regulated their jurisdiction, powers, proceedings and practice, as well as their processes and judgments, and which the constitution of 1877 declared should be by the general assembly brought into harmony with the courts of the same grade or class in the state. Whilst, therefore, the [186] act of the legislature may not have been necessary to bring those counties not having such laws directly under the constitutional provision above referred to, yet for those which did have them we think that it was certainly necessary. It is also to be noted that in the cases of Tarpley vs. Corput, 65 Ga., 257; Johnson vs. Heitman; and Stansell & Wofford vs. Hays & Co., 67 Ga., 482, 487, the defendants appeared and pleaded before judgment, the two former coming up from the justice’s court by certiorari, and the latter by appeal, whereas the plaintiff in error in this case, though personally served, with jurisdiction both as to person and subject-matter in the justice court, failed to appear, plead or defend the suit, but waited until the levy was made, and then proposed by affidavit of illegality to go behind the judgment and inquire into the organization of the court and set up other defences. We think that his remedy cannot reach the evil of which he complains, and the judgment below must therefore be affirmed. Judgment affirmed.