Opinion
44846.
ARGUED OCTOBER 6, 1969.
DECIDED OCTOBER 23, 1969.
Garnishment. McIntosh Superior Court. Before Judge Caswell.
White Pelham, Wynn Pelham, for appellant.
J. Sidney Lanier, Murray C. Underwood, for appellee.
1. Garnishment proceedings are purely statutory and, being in derogation of the common law, must be strictly pursued. Arnold v. C. S. Nat. Bank, 47 Ga. App. 254 (3) ( 170 S.E. 316); Anderson v. Ledbetter-Johnson Contractors, 62 Ga. App. 732 (2) ( 9 S.E.2d 860).
2. It is not lawful for notaries public to issue attachments or garnishments or to subscribe affidavits or approve bonds for the purpose of issuing attachments or garnishments. Code Ann. §§ 71-109, 46-102, 8-109; Thompson v. Reynolds Auto Co., 31 Ga. App. 574 (2) ( 121 S.E. 528); Brach Sons v. Oglesby Grocery Co., 33 Ga. App. 481 (2) ( 127 S.E. 157).
3. Where garnishment or attachment affidavits are subscribed to before unauthorized persons, the proceedings are void ab initio rendering judgments based thereon likewise void. Heard v. Nat. Bank of Illinois, 114 Ga. 291, 293 ( 40 S.E. 266); Thompson v. Reynolds Auto Co., 31 Ga. App. 574 (2), supra; Falligant v. Blitch, 19 Ga. App. 675 (1) ( 91 S.E. 1057); Brach Sons v. Oglesby Grocery Co., 33 Ga. App. 481 (2), supra. Cf. Leffler Son v. Union Compress Co., 126 Ga. 662 (2) ( 55 S.E. 927).
4. "A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods hereinafter prescribed." CPA § 60 (a) ( Code Ann. § 81A-160 (a)). The levy under a void judgment against a garnishee may be successfully resisted by an affidavit of illegality, alleging the invalidity in the judgment. Union Investment Co. v. Southern R. Co., 32 Ga. App. 478 (2) ( 124 S.E. 77). Cf. Anderson v. Ledbetter-Johnson Contractors, 62 Ga. App. 732, supra.
5. In the present case the affidavit for garnishment was subscribed to before a notary public, a default judgment was entered against the garnishee, execution issued, and a levy was made. In response thereto the garnishee filed, inter alia, an affidavit of illegality, alleging the illegality of the proceedings on the grounds that the garnishment affidavit was subscribed to before a notary public. Under the foregoing authorities the garnishment affidavit and subsequent judgment were void, and the levy could be successfully resisted by the affidavit of illegality urging the invalidity in the judgment. The trial court therefore erred in dismissing the affidavit of illegality on the ground that it sought to go behind the judgment rendered against the garnishee, which was void.
Judgment reversed. Bell, C. J., and Deen, J., concur.