Cochran v. Whitworth

• Decision Date: 13 December 1917
• Docket Number: 8728.
• Citation: 94 S.E. 609,21 Ga.App. 406
• Parties: COCHRAN v. WHITWORTH.
• Court: Georgia Court of Appeals

94 S.E. 609

21 Ga.App. 406

COCHRAN v. WHITWORTH.

No. 8728.

Court of Appeals of Georgia, First Division

December 13, 1917

Syllabus by the Court.

At common law, in the absence of fraud or collusion being shown the return of the levying officer was conclusive upon the fact of service. Georgia Ry. & Power Co. v. Davis, 14 Ga.App. 790, 793, 82 S.E. 387.

The remedy by affidavit of illegality against an execution which has been issued, or which is proceeding illegally, is purely statutory, and affords no remedy except such as the statute provides. State of Georgia v. Sallade, 111 Ga. 700 702, 36 S.E. 922. Thus a defendant in execution cannot ordinarily, by this means, go behind the judgment upon which the execution is based (Civil Code of 1910, § 5311), but where the judgment is not merely voidable, but wholly void as where the court was entirely and under all circumstances without jurisdiction, or where service on the defendant was never effected or waived, nor was appearance made, then the remedy of illegality is a proper mode of attacking an execution issued under a judgment so obtained ( Planters' Bank v. Berry, 91 Ga. 264, 18 S.E 137; Hilson v. Kitchens, 107 Ga. 230, 33 S.E. 71, 73 Am.St.Rep. 119; Kuhnen v. Burt, 108 Ga. 471, 34 S.E. 125), and where an illegality is thus filed to the proceeding of a common-law fi. fa., on the ground that the defendant therein has not had his day in court, there is no provision of law making it a prerequisite thereto that the defendant shall also show a valid defense to the suit wherein such judgment, wholly void, was rendered (Civil Code 1910, § 5311; Maund v. Keating, 55 Ga. 396; Dozier v. Lamb, 59 Ga. 461 [2]; Knight v. Jones, 63 Ga. 481).

If at the hearing of the illegality the record discloses a regular return of service by the proper officer, such entry, if not traversed, will be conclusive upon that issue (Maund v. Keating, 55 Ga. 396; Lamb v. Dozier, 55 Ga. 677; O'Bryan v. Calhoun, 68 Ga. 215); and it is necessary that the traverse of such return shall be made at the first term after knowledge thereof is had (Knight v. Jones, 63 Ga. 481; Wingfield v. Rhea, 77 Ga. 84 [3, (a)]); and not only is the burden upon the defendant in fi. fa. to show that it is thus made in time, but this fact should appear in the traverse itself (Knight v. Jones, 63 Ga. 481; Evans v. Smith, 101 Ga. 86, 88, 28 S.E. 617; Rawlings v. Brown, 15 Ga.App. 162, 82 S.E. 803). The officer who made the return is a necessary party to the traverse (Southern Ry. Co. v. Cook, 106 Ga. 450, 32 S.E. 585 [2]; Green v. Grant, 108 Ga. 751, 32 S.E. 846); and where the entry is made, not by the sheriff himself, but by his deputy, then both of these officers are necessary parties to the traverse (Georgia Ry. & Power Co. v. Davis, 14 Ga.App. 795, 82 S.E. 387; Rawlings v. Brown, 15 Ga.App. 162, 82 S.E. 803; Southern States Phosphate, etc., Co. v. Clark, 19 Ga.App. 376, 91 S.E. 573), and if either of them be dead at the time the traverse is made, the legal representative of such deceased officer must be named and served in his stead.

Upon the trial of such a traverse the return of service is to be taken as more than merely prima facie true; and in order to justify a finding against the return, the evidence should be the strongest of which the nature of the case will permit, and even then it will not be deemed sufficient unless it be so explicit and convincing as would, in the opinion of the jury, clearly show that the entry of service is false. Davant v. Carlton, 53 Ga. 491; Denham v. Jones, 96 Ga. 130, 23 S.E. 78; Phillips v. Wait, 106 Ga. 589, 32 S.E. 842 (2).

Error from City Court of Camilla; R. D. Bush, Judge.

Proceeding by E. L. Whitworth against G. A. Cochran. Judgment for the former, and the latter brings error. Affirmed.

Chas. Watt, Jr., and Johnson & Warren, all of Camilla, for plaintiff in error.

Peacock & Gardner, of Albany, for defendant in error.

JENKINS J.

The traverse offered in the court below to the return of the deputy sheriff was in form as follows:

"And now comes G. A. Cochran, and before the first term of the court after he received knowledge of the entry of service of the deputy sheriff in said cause upon deponent, and on the first day after he received said knowledge, files this his amendment to the affidavit of illegality heretofore filed in said case, and also his traverse, and for grounds of traverse says that said entry of service upon deponent heretofore made by the deputy sheriff is untrue, and shows that Will Griner, the deputy sheriff who made said entry, is dead, and that there is no administration on his estate, and prays the court to make the estate of the said Will Griner and the heirs of the said Will Griner, who are to deponent unknown, and C. D. Crow, sheriff of Mitchell county, parties to said illegality and traverse."

This proffered amendment and traverse was disallowed by the trial judge, who directed a verdict against the defendant as to the issue of service, and entered up judgment allowing the levy to proceed. We are constrained to hold that this ruling was correct for the reason that the legal representative of the deceased officer making the return of service was not made a party to the traverse. It is true that the traverse states that the deputy sheriff who professed to have made the service and who signed the entry...