Fitzgerald Granitoid Co. v. Alpha Portland Cement Co.
| Decision Date | 11 September 1914 |
| Docket Number | 5572. |
| Citation | 82 S.E. 774,15 Ga.App. 174 |
| Parties | FITZGERALD GRANITOID CO. ET AL. v. ALPHA PORTLAND CEMENT CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An allegation that a defendant has been denied his day in court because, at a time prior to the judgment he had an agreement with the plaintiff's attorneys to place a credit of $150 upon the note, and also an agreement with the attorneys that a judgment would not be taken without extending the credit or without giving notice to the indorser of the note, affords no ground for the interposition of an affidavit of illegality. A defendant against whom a judgment is rendered, after he has been duly served, has, in legal contemplation "had his day in court," and "cannot go behind the judgment by affidavit of illegality." If he has been deprived of a hearing by the plaintiff's fraud, unmixed with negligence on his own part, a petition in equity to set aside the judgment will lie.
The judgment, as it appears on the record, itself contradicts the allegation of the affidavit of illegality that the execution did not follow the judgment. Judicial knowledge so far extends to judgments rendered at a previous term of the court that the court will take judicial notice of papers, orders judgments, and decrees pertaining to and growing out of the same litigation and of the various steps taken therein.
Since the title of a purchaser at a sheriff's sale depends upon "the judgment, the levy and the deed, all other questions are between the parties to the judgment and the officer." Brooks v. Rooney, 11 Ga. 423, 56 Am.Dec. 430. Errors in the advertisement of property levied on under execution cannot properly be made the ground of an affidavit of illegality, but the party suffering thereby will be remitted to his remedy against the officer.
Error from City Court of Fitzgerald; D. E. Griffin, Judge.
Action by the Alpha Portland Cement Company against the Fitzgerald Granitoid Company and others. Judgment for plaintiff execution issued to which illegality of affidavit was filed and from dismissal of such affidavit defendants bring error. Affirmed.
E. Wall, of Fitzgerald, for plaintiffs in error.
McDonald & Grantham, of Fitzgerald, for defendant in error.
The plaintiffs in error contend that they have been deprived of their day in court and that illegality is their proper remedy. It appears from the record that the Alpha Portland Cement Company brought suit against the Fitzgerald Granitoid Company, a corporation, as principal, and C. W. Hayes, as indorser, upon a promissory note for $456, with interest and attorney's fees. The petition and process were duly served upon the corporation, and personally upon Hayes. No issuable defense having been filed, judgment was entered by default on September 5, 1913, against the principal and the indorser, and execution was issued on the same day. On November 6, 1913, the execution was levied upon certain personal property, and on December 2d the defendants interposed an affidavit of illegality to the levy. The illegality is based upon three grounds: (1) (2) (3) Because the property levied upon is being advertised for sale as articles difficult and expensive to transport, when such is not a fact, but the property levied on is personal property which can be easily transported, especially the horse, and the execution is proceeding illegally in attempting to sell the property otherwise than before the courthouse door. At the trial the plaintiff in execution made an oral motion to dismiss the affidavit of illegality as insufficient in law. The court sustained this motion, and the defendants excepted.
1. Nothing is better settled than that the right to file an affidavit of illegality as provided for in Civil Code, § 5305, does not include the right to go behind the judgment. Section 5311 of the Civil Code provides that:
"If the defendant has not been served, and does not appear, he may take advantage of the defect by affidavit of illegality; but if he has had his day in court, he cannot go behind the judgment by an affidavit of illegality."
In the case sub judice, if there had been no service, the judgment would have been a nullity and an affidavit of illegality would lie, but both of the defendants were served, and therefore the only question which arises (assuming the statements of the affidavit to be true) is whether they can by affidavit of illegality, take advantage of the fact that they were misled by the plaintiff's attorneys, and thus fraudulently induced to remain away from court and prevented from making a defense. In Tumlin v. O'Bryan, 68 Ga. 66, it was held that if a judgment is rendered against a defendant by fraud, accident, or mistake, or the act of the adverse party, unmixed with negligence on his own part, his remedy is by motion to vacate the judgment, or bill in equity for relief. That an affidavit of illegality is not the proper remedy in such a case was said to be "too manifest for doubt."
"Where there was service, jurisdiction in the court of the amount and person, as well as judgment against the defendant, although such judgment may not have been founded on sufficient evidence, or rendered by default, it is conclusive as against an affidavit of illegality based on causes anterior thereto." Greene v. Oliphant, 64 Ga. 565.
The Supreme Court held in Hood v. Parker, 63 Ga. 510, that:
"To deny that a judgment ought to have been rendered, on account of pre-existing facts, is to go behind the judgment."
In the last-named case the affiant sought to set up that he appeared in court and proposed to file his plea of discharge in bankruptcy, when the justice of the peace presiding informed him that it was unnecessary, and that no judgment would be rendered against him. The defendant left, and had no intimation that the judgment had been rendered against him until the fi. fa. was issued. Chief Jusice Bleckley ruled that:
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