When an execution against the property of any person issues illegally, or is proceeding illegally, and the execution is levied on such property, the person may make oath in writing, stating the cause of the illegality, and deliver the same to the sheriff or other executing officer together with bond and good security for the forthcoming of the property, as provided by this article.
(Laws 1799, Cobb's 1851 Digest, p. 509; Laws 1838, Cobb's 1851 Digest, p. 514; Code 1863, § 3591; Code 1868, § 3614; Code 1873, § 3664; Code 1882, § 3664; Civil Code 1895, § 4736; Civil Code 1910, § 5305; Code 1933, § 39-1001.)
Law reviews.- For note discussing legal and equitable relief from execution available to debtors, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
Former Code 1933, § 39-1001 et seq. (see now O.C.G.A. Art. 6, Ch. 13, T. 9) sets out how illegalities shall be filed and tried, but Ga. L. 1962, p. 609, § 1 et seq. (see now O.C.G.A. Ch. 11, T. 9) applied when the proceeding was filed and issue joined in the superior court. Whitehurst v. Universal C.I.T. Credit Corp., 131 Ga. App. 202, 205 S.E.2d 489 (1974).
This section provides remedy whenever execution may be proceeding illegally, though it issued legally. Robison v. Banks, 17 Ga. 211 (1855).
Word "issue" in this section has sense of word "proceed." Robison v. Banks, 17 Ga. 211 (1855).
Degree of specificity required.
- This section does not require that "the cause of the illegality" shall be stated in detail, or that the specific facts upon which the cause may be based shall be given. Dixon v. Mayor of Savannah, 20 Ga. App. 511, 93 S.E. 274 (1917).
Purpose and only office of affidavit of illegality is to arrest executions illegally proceeding against the property of a defendant in fieri facias; and being purely statutory, it affords no remedy except such as the statute provides. Tanner v. Wilson, 183 Ga. App. 53, 187 S.E. 625 (1936); Hamilton v. Hamilton, 80 Ga. App. 750, 57 S.E.2d 301 (1950).
Provisions for affidavits of illegality are purely statutory and cannot be employed unless right is specifically given by statute. Georgia Power Co. v. Selman, 87 Ga. App. 323, 73 S.E.2d 597 (1952).
Affidavit of illegality is proper defensive remedy to attack void judgment. Walker v. Tate, 47 Ga. App. 340, 170 S.E. 403 (1933).
Title to property levied upon is not involved in illegality proceedings. Harris v. Woodard, 133 Ga. 104, 65 S.E. 250 (1909); Ragan v. Smith, 49 Ga. App. 118, 174 S.E. 180 (1934).
To what judgments affidavit applicable.
- Remedy by affidavit of illegality applies only to the arrest of executions based upon judgments of courts, and not to the arrest of executions issued ex parte by some ministerial officer as a city clerk. Hill v. DeLaunay, 34 Ga. 427 (1866); Manning v. Phillips, 65 Ga. 548 (1880); City of Atlanta v. Jacobs, 125 Ga. 523, 54 S.E. 534 (1906); Cochran v. Whitworth, 21 Ga. App. 406, 94 S.E. 609 (1917); Cook & Kimbrell v. City of Colquitt, 29 Ga. App. 494, 116 S.E. 37 (1923); Georgia Power Co. v. Selman, 87 Ga. App. 323, 73 S.E.2d 597 (1952).
Affidavit of illegality lies only in favor of defendants in execution. Artope v. Barker, 72 Ga. 186 (1883); State v. Sallade, 111 Ga. 700, 36 S.E. 922 (1900); Ragan v. Smith, 49 Ga. App. 118, 174 S.E. 180 (1934).
If an affidavit is filed by one who is not a defendant but claims ownership, the affidavit will be dismissed. In such a case, a claim may properly be interposed by the party claiming title to the property levied upon. Ragan v. Smith, 49 Ga. App. 118, 174 S.E. 180 (1934).
Owner of property cannot file affidavit if execution is issued against someone else alleged to be the owner of the property. City of Atlanta v. Seaboard Air-Line Ry., 137 Ga. 805, 74 S.E. 268 (1912).
One cannot file an affidavit of illegality to a levy on another's property. H-J Enters. v. Bennett, 118 Ga. App. 179, 162 S.E.2d 838 (1968).
When appellees are partners in the business levied upon and only one of the partners is liable only the latter could file affidavit of illegality; the two other partners would have to file their own separate claim suits. Fowler v. Stansell, 221 Ga. 630, 146 S.E.2d 726 (1966).
Right to file affidavit of illegality does not include right to go behind judgment, contrary to former Civil Code 1910, § 5311 (see now O.C.G.A. § 9-13-121). Childs v. State Bank, 31 Ga. App. 533, 121 S.E. 254 (1924).
Affidavit of illegality must be sworn to. Howland v. Donehoo, 141 Ga. 687, 82 S.E. 32 (1914).
Affidavit properly dismissed when not verified or signed.
- When the affidavit of illegality was not verified or signed by the person against whom the execution issued, as required by this section, the affidavit was a nullity and the court did not err in dismissing the affidavit on motion. Burgess v. Calhoun Nat'l Bank, 28 Ga. App. 534, 112 S.E. 292 (1922); Goodwyn v. Bennett, 41 Ga. App. 285, 152 S.E. 605 (1930).
Sufficiency of oath.
- Oath qualified by the words, "to the best of his knowledge and belief," is not sufficient. This section contemplates a positive affidavit. Sprinz v. Vannucki, 80 Ga. 774, 6 S.E. 816 (1888); Winn v. Miller, 136 Ga. 388, 71 S.E. 658 (1911).
Affidavits are to be strictly construed against the affiant. Wactor v. Marshall, 102 Ga. 746, 29 S.E. 703 (1897).
Affiant may be required to make brief of grounds taken in affidavit, but material omissions may be proved by other evidence. Shorter v. Moore, Trimble & Co., 41 Ga. 691 (1871).
Affidavit of illegality must distinctly present matter relied upon, so that, if not denied, the court may pass judgment intelligently, or if denied, the jury may have distinctly before the jury the matter in issue. Sharpe v. Kennedy, 50 Ga. 208 (1873).
Grounds for affidavit must allege facts showing that execution has been issued or is proceeding illegally. Tanner v. Wilson, 183 Ga. 53, 187 S.E. 625 (1936).
Affidavit of illegality may bring up any good reason why it will be illegal to raise money. Davis v. Conley, 53 Ga. App. 259, 185 S.E. 526 (1936).
Defense of part payment must allege when and to whom such payments were made. Terry v. Bank of Americus, 77 Ga. 528, 3 S.E. 154 (1886); Smith v. Tokio Marine Ins. Co., 31 Ga. App. 631, 121 S.E. 846 (1924).
Proper method to attack judgment for lack of service.
- Affidavit of illegality is a proper method of attack on a judgment when the defendant claims lack of service. Rawlins v. Busbee, 169 Ga. App. 658, 315 S.E.2d 1 (1984).
Alleging want of service as cause of illegality.
- On an affidavit of illegality, attacking a judgment by a court of general jurisdiction as void for want of service, it is necessary not only for the defendant to show affirmatively that the defendant has not been served, but that the defendant has not waived service by appearance, pleading, or otherwise, since all presumptions are in favor of the regularity of that judgment; however, the rule is different if there is a recital in the judgment showing affirmatively that the return of service made by the sheriff was the only basis of jurisdiction of the court over the person of the defendant. Green v. Spires, 189 Ga. 719, 7 S.E.2d 246 (1940).
Sufficiency of stated cause of illegality.
- When levying officer's entry of levy on an execution describes the property levied on and recites that it was levied on as the property of the defendant and was found in the defendant's possession, an affidavit of illegality to arrest the levy, filed by the defendant in execution, which contains an identical description of the property as described in the execution, and recites that the execution has been levied on the property and is proceeding illegally, is not defective because of a failure of the defendant to allege specifically that the property levied on belonged to the defendant. Oliver v. Rutland, 48 Ga. App. 326, 172 S.E. 660 (1934).
Affidavit of illegality which alleges that the property involved is not covered by a security agreement or by any court order meets the requirements of this section that the affiant state the cause of such illegality. Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133 (1978).
When affidavit of illegality has been filed, execution itself becomes part of record in the case, and necessarily with it the entries which are thereon written. Dever v. Akin, 40 Ga. 423 (1869); Wactor v. Marshall, 102 Ga. 746, 29 S.E. 703 (1897).
Identifying premises by reference to levy.
- Affidavit of illegality which does not otherwise identify the premises levied upon than by reference to the levy is sufficient. Wactor v. Marshall, 102 Ga. 746, 29 S.E. 703 (1897).
Court improperly overruled motion for new trial when want of service shown.
- When it was admitted that there was no return of service whatever before the judgment was rendered and an execution levied on property of the defendant, who filed an affidavit of illegality on the grounds that the defendant was not served with process or other notice of the suit out of which the execution issued, and that the defendant did not waive service or appear in or defend the suit, and when, after the judgment was rendered, an entry of service nunc pro tunc was made by the officer and judgment was rendered against the affidavit of illegality, the court erred in overruling the defendant's motion for new trial. Elliott v. Porch, 59 Ga. App. 181, 200 S.E. 190 (1938).
Interposition when judgment has been fully satisfied by payment.
- Affidavit of illegality may be interposed when judgment has been fully satisfied by payment. Bosson v. Bosson, 117 Ga. App. 629, 161 S.E.2d 433 (1968).
Article applicable to affidavit filed in proceedings for foreclosure on personalty.
- Affidavit of illegality filed by a defendant in foreclosure proceeding under former Code 1933, § 67-701 (see now O.C.G.A. § 44-14-230) must be considered in the manner prescribed by former Code 1933, § 39-1001 et seq. (see now O.C.G.A. Art. 6, Ch. 13, T. 9). Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133 (1978).
Execution issued upon award of appraisers in condemnation proceeding may not be arrested by affidavit of illegality. Georgia Power Co. v. Selman, 87 Ga. App. 323, 73 S.E.2d 597 (1952).
Errors in advertisement of property levied on cannot properly be made ground of affidavit of illegality, but the party suffering thereby will be remitted to a remedy against the officer. Fitzgerald Granitoid Co. v. Alpha Portland Cement Co., 15 Ga. App. 174, 82 S.E. 774 (1914); Walker v. Tate, 47 Ga. App. 340, 170 S.E. 403 (1933); Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668 (1940).
Defendant's discharge in bankruptcy is no ground of illegality to levy on judgment for plaintiff in trover. Barnes v. Moseley, 41 Ga. App. 713, 154 S.E. 388 (1930).
Pending motion in arrest of judgment does not of itself afford a ground for an affidavit of illegality. Walker v. Tate, 47 Ga. App. 340, 170 S.E. 403 (1933).
Levy of executions for state and county taxes.
- There is no statutory provision for contesting levy of executions for state and county taxes issued by tax collector of a county, and the levy of such an execution cannot be arrested by affidavit of illegality. Means v. Myrick, 46 Ga. App. 263, 167 S.E. 323 (1933); Atkinson v. Fitzgerald, 46 Ga. App. 264, 167 S.E. 340 (1933).
Affidavit of illegality is not available to arrest levy of tax execution made for benefit of transferee thereof. Means v. Myrick, 46 Ga. App. 263, 167 S.E. 323 (1933); Atkinson v. Fitzgerald, 46 Ga. App. 264, 167 S.E. 340 (1933).
As to county tax executions, the remedy of affidavit of illegality is not available. City of Carrollton v. Word, 215 Ga. 104, 109 S.E.2d 37 (1959).
Adequate remedy precludes enjoining levy.
- Petition does not lie to enjoin levy when the defendant in execution has adequate remedy by illegality. Hitchcock v. Culver, 107 Ga. 184, 33 S.E. 35 (1899); Grading, Inc. v. Cook, 211 Ga. 749, 88 S.E.2d 364 (1955).
City tax execution not enjoined when affidavit of illegality authorized by city charter.
- When the remedy of affidavit of illegality to test the validity of city tax executions was expressly provided in the city charter, which is an adequate remedy at law, equity had no jurisdiction to enjoin such tax executions or assessments and the petition by taxpayers seeking such equitable relief was not maintainable. City of Carrollton v. Word, 215 Ga. 104, 109 S.E.2d 37 (1959).
Affidavit of illegality does not have to be accompanied by bond unless the defendant desires to maintain possession of the property. Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133 (1978).
Cited in Horne v. Spivey, 44 Ga. 616 (1872); Manning v. Phillips, 65 Ga. 548 (1880); Mitchell v. Cooper, 73 Ga. 796 (1884); Gregory & Bro. v. Hendricks, 12 Ga. App. 486, 77 S.E. 585 (1913); Howland v. Donehoo, 141 Ga. 687, 82 S.E. 32, 1917B L.R.A. 513 (1914); Rawlings v. Brown, 15 Ga. App. 162, 82 S.E. 803 (1914); Dixon v. Mayor of Savannah, 20 Ga. App. 511, 93 S.E. 274 (1917); Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668 (1940); Huling v. Huling, 194 Ga. 819, 22 S.E.2d 832 (1942); McClenton v. Wetherington, 89 Ga. App. 61, 78 S.E.2d 550 (1953); Powell v. Powell, 95 Ga. App. 122, 97 S.E.2d 193 (1957); Iannicelli v. Iannicelli, 169 Ga. App. 155, 311 S.E.2d 850 (1983); Holloway v. State, 178 Ga. App. 141, 342 S.E.2d 363 (1986); Hunt v. Lee, 199 Ga. App. 130, 404 S.E.2d 446 (1991).
RESEARCH REFERENCES
Am. Jur. 2d.
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 269 et seq.
C.J.S.- 33 C.J.S., Executions, § 288 et seq.
ALR.
- Inadequacy of legal remedy as basis for equitable relief from levy of execution, 171 A.L.R. 221.