Georgia Reports Volume 120 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1904 edition. Excerpt: ...and regularity of the judgment on which the fi. fa. was based. If the defendant had filed an aifidavit of illegality, it would not have been sufficient to prove, as here, that she had " never plead." It would have been necessary to show that there was no waiver of the alleged want of jurisdiction. LeMa.ster v. Orr, 101 Ga. 764. This presumption in favor of a writ issuing from a court of general jurisdiction can in no event be overcome by-the testimony of a. third person that the defendant did not plead; that he was her agent and would have known it if she had done so. Even if this negative testimony be sufficient to establish her failure to plead, it does not establish that there was no lwaiver, and, according to the Civil Code, 5079, while one can not give jurisdiction, it may be waived so far as the parties themselves are concerned. If, therefore, Mrs. Ansley waived any want of jurisdiction in Fulton superior court, the judgment therein was valid against her. _ The claimant could not attack the execution on grounds which the defendant in fi. fa. cohld not then have made. In allowing it to proceed, the rights of third persons were not affected. If the land was in fact her property, the claimant was not injured. If it had been sold by the defendant to the claimant after the rendition of the judgment, and the lien had attached, the claimant took subject thereto, and could not complain if the fi. fa. was allowed to proceed. If the claimant had a title older than the lien, or one derived from another source, on proof of that fact the verdict should have been not subject. Although Mrs. Ansley was a resident of Lee county, she could have waived the want of jurisdiction of Fulton superior court. Besides this, there are cases...