
    WALKER et al. v. EQUITABLE MORTGAGE COMPANY.
    The remedy of resisting hy an affidavit of illegality a levy upon property is open only to one who is a defendant in the execution levied, and not then unless the property levied on is seized as his property.
    Argued December 4, 1900.
    Decided January 26, 1901.
    Affidavit of illegality. Before Judge Littlejohn. Schley superior court. April 11, 1900.
    
      J. H. Lumpkin and W. P. Wallis, for plaintiffs in error.
    
      E. A. Hawkins, contra.
   Little, J.

The plaintiffs in error instituted an action in the superior court of Schley county against Charles A; Taylor, in which they claimed to own certain land of which. Taylor was in possession. They also asked for a receiver to take charge of the land. Answering the petition Taylor claimed that the title was in him. Subsequently the Equitable Mortgage Company came in by intervention and was made party plaintiff in said case, and averred that it held title to the land under a previous conveyance from Taylor. Afterward a judgment was rendered by tbe judge of tbe superior court in vacation in favor of the Mortgage Company for a named amount, with interest and cost, and establishing a special ben on tbe land in favor of tbe company for tbe amount of tbe judgment, on wbicb execution was issued and levied on tbe land in question as tbe property of Taylor, to which tbe plaintiffs in error interposed an affidavit of ibegabty on a number of grounds, among others, that tbe. judgment having been rendered in vacation was void. On the* bearing tbe affidavit of ibegabty was dismissed, and tbe plaintiffs in error excepted.

A number of interesting and important -questions were asked to be decided, on tbe presentation of tbe case in this court, among others, tbe contention that tbe Mortgage Company vvas not a proper party to tbe original proceeding, and that tbe judge bad no authority to bear tbe case and render judgment in vacation; but an examination of tbe record shows that tbe determination of these questions is not involved in tbe sole question we are to determine, that is, whether tbe trial judge committed error in dismissing the affidavit of ibegabty. It is our opinion that, regardless of tbe »questions whether tbe Mortgage Company was properly made a party to tbe original suit,. and whether tbe judgment rendered thereon was void because of a want of jurisdiction in tbe presiding judge to render tbe same in vacation, tbe dismissal of tbe affidavit of ibegabty was in any event right; and were we to accede to tbe request of counsel and adjudicate these questions, such adjudication would be entirely outside of the case, and not of any binding force. Hence, it wbl be understood that these questions are not considered, nor adjudicated.

Under tbe original suit tbe only question in wbicb tbe plaintiffs in error bad any interest concerned title of tbe land wbicb they claimed. Taylor, tbe defendant, asserted title in himself, while the Mortgage Company insisted that a security deed executed by Taylor to it invested it with title superior to tbe claim of tbe plaintiffs in tbe action. Tbis question was adjudicated by tbe judgment, tbe legal effect of which is to declare that tbe right of tbe plaintiffs to tbe land was subordinate to tbe claim of tbe Mortgage Company. Tbe further effect of tbis judgment is to determine that Taylor, tbe defendant, was indebted to tbe Mortgage Company in ’ a given amount, for wbicb it should be entitled to a special ben on-the land. No amount of money was ascertained to be due by the plaintiffs in the suit to the Mortgage Company; indeed, none was claimed. It is true that the judgment recites that the Mortgage Company recover of Taylor, and the persons who are plaintiffs in error here, certain sums of money, but this recital must be construed in the light of the pleadings, and as a matter of law judgment was not rendered in favor of the company against the original plaintiffs for any specific sum of money, nor was any execution issued against them. The effect of the judgment, assuming it to be valid, was to adjudicate the right of the respective parties to the land in question. The execution followed the judgment, and contained a recital that the company had recovered of Taylor and the plaintiffs in error certain sums of money, but it issued only against Taylor, who had been adjudged to be the only debtor. Now, in the case of State v. Sallade, 111 Ga. 700, this court ruled that an affidavit of illegahty is a remedy which lies only in favor of a defendant in execution, and if filed by one who is not a defendant, the court to which the issue thus sought to be made is returned, being without jurisdiction to try it, should dismiss the affidavit of illegahty; and in the case of VanDyke v. Besser, 34 Ga. 268, it was ruled that “An affidavit of illegahty must be made by the party, his agent or attorney, against whom the execution may, at the time, be proceeding. It can not be made by a codefendant in his' own name, when the execution is not proceeding against him.” As a matter of law the execution was not proceeding against the plaintiffs in error, but against defendant Taylor; it was levied on the land as his property. Therefore the question whether a defendant would have the right by illegahty to attack a void judgment can not be considered, because, being a statutory remedy, an affidavit of illegahty can only be made available by a defendant in execution when it is proceeding against him and when his property is sought to be subjected. Clearly, therefore, the rights of the plaintiffs in error, even if the judgment on which the execution issued is invalid for want of jurisdiction in the judge who rendered it, can not be enforced by affidavit of illegahty, and, therefore, regardless of this question, they had no legal right to this mode of procedure.

Judgment affirmed.

All the Justices concurring.  