Sheppard v. Roberson

Lumpkin, P. J. This case presents for adjudication the single question dealt with in the headnote. Under the section of the code there cited, it is the right of a defendant against whose property an execution “shall issue illegally” to arrest a levy of the same by filing an affidavit of illegality. ■ It appears in the present case that an execution was issued-from a justice’s court .against the defendants in error within four days after the rendition of the judgment upon which it was founded. It was subsequently levied on their property, and they interposed an .affidavit of illegality, which the trial judge held was good. We .agree to the correctness of this ruling. In Knoxville Company [758] v. Lovinger, 83 Ga. 563, this court held that such an execution issued by a justice’s court was irregular, but not void, and while for that reason the same could not be attacked collaterally by a claimant, it was open to a direct attack by the defendant in execution. In 8 Enc. PI. & Pr. 344, it is said: “An execution-issued prematurely, even if it be issued at a time when its issuance is prohibited by statute, while it may be remedied in a. direct proceeding seasonably instituted, is not absolutely void,, but irregular merely.” Our statute plainly points out the way in which the defendant in execution may take advantage of such an irregularity, viz., by filing his affidavit of illegality, which was the course pursued in the present case. Judgment affirmed. AU the Justices concurring.