Opinion
32785.
DECIDED JANUARY 19, 1950.
Affidavit of illegality; from Montgomery Superior Court — Judge Graham. September 17, 1949.
H. Alonzo Woods, for plaintiff in error.
N. G. Reeves Jr., contra.
An affidavit of illegality does not lie to go behind a consent judgment. It is not a remedy in equity or for equitable relief. It affords no remedy except as the statute provides.
DECIDED JANUARY 19, 1950.
S.W. Hamilton, the defendant in error here, whom we shall call the plaintiff, caused to be levied an execution against B. F. Hamilton, the plaintiff in error here, whom we shall call the defendant, said execution being levied on certain property of the defendant. The defendant interposed an affidavit of illegality and for grounds thereof alleged: First, that the defendant has never had his day in court. Second, that he has never waived any of his rights nor authorized anyone to do so for him; that he has a good defense; that his defense should have been tried before any judgment on execution issued against him or his property. Third, "the decree" on which the execution is based was through a purported agreement concerning which the defendant knew nothing and did not authorize same; all of which was and is now illegal upon its face. This happened because the defendant's attorney, J. Wade Johnson, after consulting with the defendant relative to a consent verdict, misunderstood the facts and inadvertently agreed to the consent verdict on which the execution is based, without any authority from the defendant and to which consent verdict the defendant has never agreed. Fourth, the defendant was in court the day the said judgment was obtained, but the judgment was obtained without the defendant's knowledge, consent or authority. The defendant did not know of this until after the court had adjourned. Fifth, the defendant has a meritorious defense filed in the case now pending in this court which has not been in any way legally considered nor passed upon; the defendant has been prohibited from said advantages by reason of the fact that said judgment was obtained upon the uncertainty of the pleadings therein, misunderstanding, without the consent, knowledge, or approval of the defendant, or mistake or misadventure, deceit, or the omission of the faithful performance of duty on the part of the defendant's attorney, the said J. Wade Johnson. Sixth, due to the aforesaid misadventure, deceit, or omission of duty, mistake, or accident, the court was misled into signing the purported judgment of which the defendant was not aware until after the court had adjourned and had been advised by S. J. Elliott, who happened to be in the jury room where the consultation was had by the defendant's attorney, the said Johnson and W. G. Reeves, attorney for the plaintiff; that they among themselves discussed the matter at length, after which the purported judgment was the result. But that any such agreement as to judgment by consent was in every way without the knowledge, consent or approval and without the authority of the defendant. Seventh, the defendant's rights and equities have been thereby grossly and illegally violated. This is true for the reason that the defendant has not had his day in court.
Counsel for the plaintiff filed a demurrer and motion to dismiss the affidavit of illegality of the defendant on the grounds: "Such affidavit does not as a whole, nor do any of its several counts, paragraphs or counts, show a cause of action against this defendant [meaning S.W. Hamilton]." The court sustained this demurrer and motion and dismissed the affidavit of illegality of the defendant B. F. Hamilton. In doing so, the court rendered the following judgment: "Upon motion of counsel for plaintiff in fi. fa., S.W. Hamilton, the illegality in said case filed by the defendant, B. F. Hamilton, is hereby dismissed.
"The execution in this case is based upon a judgment granted before me in this court on a verdict taken by consent on Nov. 5, 1948 in the presence of the attorneys for the parties and also in the presence of the plaintiff and defendant.
"Thereafter, the said B. F. Hamilton filed a suit in this court on February 7, 1949, against the said S.W. Hamilton to set aside said verdict and judgment, among other grounds, on the ground that said verdict and judgment was taken without his consent, and to enjoin the enforcement thereof.
"On the hearing of said petition for injunction and to set aside said judgment before me on February 26, 1949, the injunction was denied.
"On May 2, 1949, when the said injunction case was called for trial before me, the said B. F. Hamilton failing to appear, same was dismissed for want of prosecution.
"Be this as it may, and without considering the history of the case, the said affidavit of illegality states that the verdict and judgment was entered by consent of counsel of B. F. Hamilton and also fails to state any ground to sustain the said illegality.
"Wherefore, as above stated, it is ordered that the said illegality be, and the same is hereby dismissed at the costs of the said B. F. Hamilton to be hereafter taxed by the clerk of this court. This September 17, 1949. [Signed] Eschol Graham, Judge Superior Court, Oconee Circuit." Error is assigned here on the judgment dismissing the affidavit of illegality.
1. (a) It will be noted that the court in dismissing the affidavit of illegality took notice of the facts of the case as shown by the record and as to what took place in its presence. The trial judge is authorized to do this. Woodruff v. Balkcom, 205 Ga. 445 ( 53 S.E.2d 680). The Code, § 37-901, provides: "The superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require."
(b) An affidavit of illegality must allege sufficient facts to show that the execution was issued and is proceeding illegally. It is not a remedy for equity or equitable relief. It affords no remedy except such as the statute provides. Code § 39-1001 provides: "When an execution against the property of any person shall issue illegally, or shall be proceeding illegally, and such execution shall be levied on property, such person may make oath in writing, and shall state the cause of such illegality, and deliver the same to the sheriff, or other executing officer, as the case may be, together with bond and good security for the forthcoming of such property, as provided by this Code." The Supreme Court in Tanner v. Wilson, 183 Ga. 53, 57 ( 187 S.E. 625), states: "The purpose and only office of an affidavit of illegality as provided in the Code, § 39-1001, is to arrest executions illegally proceeding against the property of the defendant in fi. fa.; and being purely statutory, it affords no remedy except such as the statute provides." It clearly appears that the affidavit of illegality in the instant case sets out no legal grounds for the relief sought. If any grounds of complaint at all are shown by the allegations of the affidavit of illegality (and we do not mean to say there are any shown), they are more in the nature of matters of equity.
(c) The allegations show that the defendant had his day in court. This being true, he can not go behind the judgment by an affidavit of illegality. Code § 39-1009 provides: "If the defendant shall not have been served and does not appear, he may take advantage of the defect by affidavit of illegality; but if he shall have had his day in court, he may not go behind the judgment by an affidavit of illegality." This court, in Evans v. Evans, 62 Ga. App. 618, 621 ( 9 S.E.2d 99), said: "A consent judgment which shows on its face that it is a consent judgment can not be attacked collaterally for want of assent. The attack must be by direct proceedings for that purpose. . . The record in this case shows that the defendant had his day in court, and could not go back of the judgment by affidavit of illegality. . ." See, in this connection, Patterson v. Georgia Gravel Co., 151 Ga. 813 (2) ( 108 S.E. 237), as follows: "The client can not by affidavit of illegality go behind the consent judgment so entered, but such judgment may be set aside upon proper proceedings therefor, duly commenced.
The only authority called to our attention by counsel for the defendant to sustain his contentions for a reversal is Dodd v. Callaway, 76 Ga. App. 629 ( 46 S.E.2d 740). That case in no wise sheds any light on the question here presented. It does not involve any issue arising under a proceeding involving an affidavit of illegality.
The court did not err in sustaining the demurrer and dismissing the affidavit of illegality.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.