Title 9

An affidavit of illegality shall not be a remedy for an excessive levy except where authorized by statute. (Code 1933, § 39-1004.) History of Code section. — The language of this Code section is derived in part from the decision in Pinkston v. Harrell, 106 Ga. 102, 31 S.E. 808 (1…

An affidavit of illegality may be filed by an attorney in fact or by an executor, administrator, or other trustee. (Orig. Code 1863, § 3596; Code 1868, § 3620; Code 1873, § 3670; Code 1882, § 3670; Civil Code 1895, § 4741; Civil Code 1910, § 5310; Code 1933, § 39-1002.)

No affidavit of illegality shall be received by any sheriff or other executing officer until a levy has been made. (Laws 1838, Cobb’s 1851 Digest, p. 514; Code 1863, § 3592; Code 1868, § 3615; Code 1873, § 3665; Code 1882, § 3665; Civil Code 1895, § 4737; Civil Code 1910, § 5306;…

Affidavits of illegality are, upon motion and leave of court, amendable instanter by the insertion of new and independent grounds, provided that the defendant shall swear that he did not know of such grounds when the original affidavit was filed. (Laws 1850, Cobb’s 1851 Digest, p…

When an execution is levied on personal property and an affidavit of illegality is filed thereto and the party filing the illegality desires to take or keep possession of the property, he shall deliver to the sheriff or other levying officer a bond payable to the levying officer,…

When levy has been made and affidavit and bond delivered to the levying officer, it shall be the duty of the officer to suspend further proceedings on the execution and to return the execution, affidavit, and bond to the next term of the court from which the execution issued. It …

Upon the trial of an issue formed on an affidavit of illegality, the jury trying the case shall have power to assess such damages as may seem reasonable and just, not exceeding 25 percent of the principal debt, where it is made to appear that the illegality was interposed for del…

(a) The sheriff, coroner, or other officer shall publish weekly for four weeks in the legal organ for the county, or if there is no newspaper designated as such, then in the nearest newspaper having the largest general circulation in such county, notice of all sales of land and o…

In all cases where the law requires citations, notices, or advertisements by probate court judges, clerks, sheriffs, county bailiffs, administrators, executors, guardians, trustees, or others to be published in a newspaper for 30 days or for four weeks or once a week for four wee…

(a) No journal or newspaper published in this state shall be declared, made, or maintained as the official organ of any county for the publication of sheriff’s sales, citations of probate court judges, or any other advertising commonly known in terms of ‘‘official or legal advert…

(a) The rates to be allowed to publishers for publishing legal advertisements shall be as follows: (1) For each 100 words, not more than the sum of $10.00 for each insertion for the first four insertions; and (2) For each subsequent insertion, not more than the sum of $9.00 per 1…

(a) If the judge of the probate court, the sheriff, or other officer is unable to procure advertisements at the rate prescribed in Code Section 9-13-143 in a newspaper published at the county site of the county, he may have the advertisements published in any newspaper in this st…

No sheriff or deputy sheriff shall be required to advertise the property of any defendant in execution for sale until the cost of the advertisement shall have been first paid by the plaintiff in execution, his agent, or his attorney, provided that when any such party plaintiff, o…

(a) For the purposes of this Code section, the term ‘‘public sale’’ means any sale, the notice of which must by law in any manner be given to the public. (b) All public sales conducted within this state shall be between the hours of 10:00 A.M. and 4:00 P.M. eastern standard time …

(a) Unless otherwise provided, sales of property taken under execution shall be made by the sheriffs or coroners only at the courthouse of the county where the levy was made on the first Tuesday in each month, between the hours of 10:00 A.M. and 4:00 P.M., and at public outcry; p…

(a) In any county of this state having a population of 600,000 or more according to the United States decennial census of 1990 or any future such census, the chief judge of the superior court shall be authorized and empowered to provide, by general order published in the official…

Any sheriff, coroner, constable, tax collector, guardian, trustee, or any other officer of this state, when selling property at public sale by virtue of any law of this state, may continue the sale from day to day until the sale is completed, provided that the trustee or other of…

Whenever any personal property which is of a perishable nature or liable to deteriorate from keeping or the keeping of which is attended by expense is levied on by virtue of any fi. fa., attachment, or other process, and the defendant fails to recover possession of the same and i…

(a) The time and place of holding a sale under Code Section 9-13-163 shall be advertised at the courthouse and at two other public places at least ten days before the day of sale. (b) The judge or judge of the probate court may order a sale of livestock, fruit, or other personal …

Whenever a tax fi. fa. is levied on property which is of a perishable nature or is liable to deteriorate in value from keeping or which is attended with expense in keeping, the same may be sold under Code Sections 9-13-163 and 9-13-164. (Ga. L. 1873, p. 48, § 1; Code 1882, § 3648…

Purchasers at judicial sales need not tender cash but, as an alternative, may tender a cashier’s or certified check which is drawn for the amount of the purchase price and which is issued by or certified by any financial institution insured by the Federal Deposit Insurance Corpor…

(a) The purchaser shall look for himself as to the title and soundness of all property sold under judicial process. (b) Actual fraud or misrepresentation by the officer or his agent may bind the officer personally. No covenant of warranty shall bind him individually unless made w…

The purchaser at a judicial sale shall not be bound to look to the appropriation of the proceeds of the sale nor to the returns made by the officer, nor shall he be required to see that the officer has complied fully with all regulations prescribed in such cases. All such irregul…

No note or memorandum in writing shall be necessary to charge any person at a judicial sale. (Laws 1831, Cobb’s 1851 Digest, p. 514; Code 1863, § 2577; Code 1868, § 2579; Code 1873, § 2621; Code 1882, § 2621; Civil Code 1895, § 5448; Civil Code 1910, § 6053; Code 1933, § 39-1306.…

(a) Any person who becomes the purchaser of any real or personal property at any sale made at public outcry by any executor, administrator, or guardian or by any sheriff or other officer under and by virtue of any execution or other legal process, who fails or refuses to comply w…

Where property is sold under void process and the proceeds are applied to valid liens against the defendant or the defendant receives the benefit thereof, he shall be bound thereby if he is present and does not object to the sale. (Civil Code 1895, § 5472; Civil Code 1910, § 6077…

Courts shall have full power over their officers making execution sales. Whenever the court is satisfied that a sale made under process is infected with fraud, irregularity, or error to the injury of either party, the court shall set aside the sale. (Civil Code 1895, § 5427; Civi…

(a) As used in this Code section, ‘‘eligible sale’’ means a judicial or nonjudicial sale that was conducted in the usual manner of a sheriff’s sale and that was rescinded by the seller within 30 days after the sale but before the deed or deed under power has been delivered to the…

A sale regularly made by virtue of judicial process issuing from a court of competent jurisdiction shall convey the title as effectually as if the sale were made by the person against whom the process was issued. (Orig. Code 1863, § 2575; Code 1868, § 2577; Code 1873, § 2619; Cod…

If a sheriff fails to make titles to a purchaser, his successor in office may make them in the same manner as if he had sold the property. (Laws 1799, Cobb’s 1851 Digest, p. 576; Code 1863, § 2583; Code 1868, § 2585; Code 1873, § 2627; Code 1882, § 2627; Civil Code 1895, § 5453; …

When any sheriff or other officer sells any real estate or present interest in land by virtue of and under any execution or otherwise, it shall be his duty, upon application, to place the purchaser or his agent or attorney in possession of the real estate. To this end, the office…

If the purchaser of real estate at sheriff’s and other sales under execution fails to make application for possession thereof until the next term of the superior court after the sale has taken place or until the officer making the sale has gone out of office, the possession may b…

The purchaser at a judicial sale may enforce any covenants of warranty running with the land which are incorporated in the previous title deeds. (Orig. Code 1863, § 2578; Code 1868, § 2581; Code 1873, § 2623; Code 1882, § 2623; Civil Code 1895, § 5450; Civil Code 1910, § 6055; Co…

In all controversies in the courts of this state, the purchaser at a judicial sale shall not be required to show title deeds prior to his purchase unless it is necessary for his case to show good title in the person whose interest he purchased. (Orig. Code 1863, § 2576; Code 1868…

Bond and security for damages; how damages determined. Affidavit of indigence. Postponement of sale. Forthcoming bond for possession of property; amount and condition; not authorized for realty; when and where recoverable. Execution of affidavit and bond by partner or joint owner…

Affidavit of illegality — To show lack of service; not available to go behind judgment. Affidavit of illegality — Not available for excessive levy generally. Affidavit of illegality — By whom filed. Affidavit of illegality — When received. Affidavit of illegality — When and how a…

Execution against principal and his surety on appeal. Execution following death of defendant. Executions using partnership name valid. Right to transfer execution; status of transferee. Effect of transfer by attorney; ratification. Transfer of execution upon payment; status of tr…

(a) Any person restrained of his liberty under any pretext whatsoever, except under sentence of a state court of record, may seek a writ of habeas corpus to inquire into the legality of the restraint. (b) Any person alleging that another person in whom for any cause he is interes…

The return of the party served with the writ shall be made at the time and place specified by the court. Two days from the time of service shall be allowed for every 20 miles which the party has to travel from the place of detention to the place appointed for the hearing. If serv…

Every return to a writ of habeas corpus shall be under oath. If the custody or detention of the party on whose behalf the writ issues is admitted, his body shall be produced unless prevented by providential cause or prohibited by law. (Orig. Code 1863, § 3918; Code 1868, § 3942; …

If the return denies the custody or detention of the person in question, it shall further state distinctly the latest date, if ever, at which custody was had and when and to whom custody was transferred. If it appears that a transfer of custody was made to avoid the writ of habea…

In every case in which detention is justified under legal process, the legal process shall be produced and submitted to the judge at the hearing of the return. (Orig. Code 1863, § 3919; Code 1868, § 3943; Code 1873, § 4019; Code 1882, § 4019; Penal Code 1895, § 1220; Penal Code 1…

If the return denies any of the material facts stated in the petition or alleges other facts upon which issue is taken, the judge hearing the return may in a summary manner hear testimony as to the issue. To that end, he may compel the attendance of witnesses and the production o…

If the person who is the subject of a petition for the writ of habeas corpus is detained upon a criminal charge and the district attorney is in the county, he shall be notified of the hearing. If he is not, the notice shall be given to the prosecutor of the criminal charge. (Ga. …

No person shall be discharged upon the hearing of a writ of habeas corpus in the following cases: (1) When he is imprisoned under lawful process issued from a court of competent jurisdiction unless his case is one in which bail is allowed and proper bail is tendered; (2) By reaso…

If the person in question is detained upon a criminal charge and it appears to the court that there is probable cause for his detention, he shall not be discharged for any defect in the affidavit, warrant, or commitment until a reasonable time has been given to the prosecutor to …