Opinion
39057.
DECIDED SEPTEMBER 22, 1961.
Complaint. Whitfield Superior Court. Before Judge Davis.
L. Hugh Kemp, Pittman, Kinney Pope, for plaintiff in error.
Mitchell Mitchell, contra.
1. An affidavit of illegality may not go behind the judgment or other proceeding upon which the fi. fa. is based. Duvall v. Barron, 14 Ga. App. 304 ( 80 S.E. 701); Childs v. State Bank of Chicago, 31 Ga. App. 533 ( 121 S.E. 254); Courson v. Manufacturers Finance Acceptance Corp., 41 Ga. App. 551 ( 153 S.E. 624). Illegality to executions is a purely statutory proceeding, and no equitable defenses which attempt to go behind the judgment may be allowed. Cf. Bowen v. Groover, 77 Ga. 126.
2. Accordingly, where in this case the affiant in his illegality to the levy of an execution issued on the foreclosure of a conditional-sale contract covering a 1960 Ford truck sought to contend that under the terms of the contract an insurance company, not a party to the case, was liable to the plaintiff in fi. fa. instead of the defendant, because the defendant had become disabled, which disability, it was contended, obligated the insurance company to assume the monthly payments due under the contract, such defense, if available at all, could have been raised by the timely filing of a traverse to the affidavit to foreclose. After the judgment of foreclosure, it was too late to raise such a defense by affidavit of illegality, and the trial court erred in overruling the plaintiff's demurrers to the affidavit as amended. See Allen v. Duval Motors Co., 36 Ga. App. 336 ( 136 S.E. 479); Hamilton v. Hamilton, 80 Ga. App. 750 ( 57 S.E.2d 301); Tanner v. Wilson, 183 Ga. 53 ( 187 S.E. 625).
Judgment reversed. Nichols and Eberhardt, JJ., concur.