McConnell v. Mason

Jenkins, P. J. The contention made in the affidavit of illegality, to the effect that the execution, founded on a judgment rendered against another as principal and the affiant as surety on a forthcoming bond given in a trover proceeding, could not legally proceed, for the reason that the principal had not in fact signed the bond on which such judgment was rendered, can not be raised by affidavit of illegality. The judgment having been rendered by a court of competent jurisdiction, and both the parties against whom the judgment was entered having had their day in court the record in the illegality proceeding showing that the affiant actually appeared in court in the trover case and filed certain papers in the nature of an intervention (in which the fact that he had signed a forthcoming bond in that proceeding was admitted), the judgment rendered on the trover bond has become absolute with respect to all matters of defense which the affiant might have urged previous to its rendition. Under the view we take of the law with respect to the inability of the affiant to go behind and attack the judgment in such manner, it is unnecessary to determine whether under the evidence now submitted the jury could have found that the affiant had obtained possession of the property under the .trover bond as signed by him prior to the judgment 'rendered against him thereon, and, if so, whether the judgment entered against him on said bond in that proceeding was or was not correct. Judgment affirmed. Stephens and Bell, JJ., concur.