If execution as provided in subsection (b) of Code Section 48-5-238 issues for an amount greater than the amount due or if the defendant denies on oath owing any part of the amount claimed, the defendant may cause an issue to be formed on the execution by filing an affidavit of illegality according to the rules governing other illegalities. Each issue shall be tried by a jury at the first term of the superior court held after the filing of the affidavit.
(Orig. Code 1863, § 496; Code 1868, § 559; Code 1873, § 525; Code 1882, § 525; Civil Code 1895, § 415; Civil Code 1910, § 524; Code 1933, § 92-3810; Code 1933, § 91A-1219, enacted by Ga. L. 1978, p. 309, § 2.)
Cross references.- Refunds of taxes and license fees by counties and municipalities; time and manner of filing claims and actions for refund; authority to approve or disapprove claims, § 48-5-380.
JUDICIAL DECISIONS
Remedy by affidavit of illegality under this statute is valid and constitutional. Bennett v. Wheatley, 154 Ga. 591, 115 S.E. 83 (1922).
Affidavit of illegality available after levy of execution.
- After levy of an execution issued under former Civil Code 1910, §§ 522 and 523 (see now O.C.G.A. § 48-5-238), an affidavit of illegality was an available remedy. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459 (1931).
Remedy by affidavit of illegality is not available if there was no levy on the property. Ben Hill County v. Massachusetts Bonding & Ins. Co., 144 Ga. 325, 87 S.E. 15 (1915).
Remedy before levy is injunction.
- If the execution provided for under former Civil Code 1910, §§ 522 and 523 (see now O.C.G.A. § 48-5-238) had not been levied, an affidavit of illegality was not available and an injunction is the remedy. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409, 157 S.E. 459 (1931).
Affidavit issued against administratrix of tax collector.
- An affidavit of illegality to a tax fi. fa., issued by order of the ordinary (now county governing authority) against the administratrix of the collector and the collector's sureties, is properly retained to try the issue pursuant to the provisions of this statute. Walden v. County of Lee, 60 Ga. 296 (1878); County of Lee v. Walden, 68 Ga. 664 (1882).
Sale after acceptance of affidavit is invalid.
- When an execution has been issued against a tax collector and the sureties on the collector's bond, and an affidavit of illegality filed by the tax collector under former Code 1882, §§ 525 and 3666 (see now O.C.G.A. §§ 9-13-127 and48-5-239), has been accepted by the levying officer, a subsequent sale of the property of the surety, before judgment on the illegality, was invalid, and conveyed no title. Whelchel v. Lucky, 41 F. 114 (N.D. Ga. 1890).