Warwick Gin & Cotton Co. v. Continental Gin Co.

Beck, J. (After stating the facts.) The court properly held [511] that the illegality should be dismissed and that the fi. fa. should proceed. Under the agreed statement of facts set forth above,.the defendant was duly served. Although the officer serving the suit and process upon the defendant in fi. fa. was, at the time of making such service, a non-resident of Crisp county, and for that reason ineligible to the office which he was filling (because the act which annexed the territory in which he was living to the county of Crisp was unconstitutional, null and void), still he was a de facto officer, and, having in good faith made.the service, this service was not void. An official act of the character under consideration by a de facto officer can not be treated as of no effect. See Godbee v. State, 141 Ga. 515 (81 S. E. 876), and cases there cited. If the defendant did not appear and plead and had not waived the question of jurisdiction, as it contends, it 'should have made this appear from the record or other competent evidence. It is true that under the agreed statement of facts it is shown that the defendant did not appear nor plead; but that was not sufficient to resist the enforcement of the fi. fa. It should have shown by competent evidence that it had not waived the want of jurisdiction. In the case of Ansley v. O’Byrne, 120 Ga. 618, 620 (48 S. E. 228), it was-said: “A defendant who has had his day in court can not go behind the judgment for the purpose of showing that it ought never to have been rendered, nor will a claimant be allowed any such right. Horne v. Powell, 88 Ga. 639 [15 S. E. 688]; New England Mortgage Co. v. Watson, 99 Ga. 735 [27 S. E. 160]; Osborne v. Rice, 107 Ga. 282 [33 S. E. 54], If, then, this be the test, it is manifest that the court below properly refused the motion to dismiss the levy on the present execution. Prima facie it was good against the defendant. It issued from a court of general jurisdiction, with all the presumptions in favor of the validity and regularity of the judgment on which the fi. fa. was based. If the defendant had filed an affidavit of illegality, it would not have been sufficient to prove, as here, that she had ‘never plead/ It would have been necessary to show that there was- no waiver of the alleged want of jurisdiction. LeMaster v. Orr, 101 Ga. 764 [29 S. E. 32]. This presumption in favor of a writ issuing from a court of general jurisdiction can in no event be overcome by the testimony of a third person that the defendant did not plead; that he was her.agent and would have known it if she had done so, [512] Even if this negative testimony be sufficient to establish her failure to plead, it does not establish that there was no waiver, and, according to the Civil Code [1895], § 5079 [1910, § 5663], while one can not give jurisdiction, it may be waived so far as the parties themselves are concerned.” It follows from what we have said above that the court did not err in dismissing the affidavit of illegality. Judgment affirmed. All the Justices concur.