McConnell v. Bryant , 38 Ga. 639 ( 1869 )

Brown, C. J.

The defendant in this case filed the affidavit authorized by the statute, which, with the plaintiff’s affidavit, in the language of the statute, formed “ an issue to be returned to the Court, and tried as other causes.” See Revised Code, secs. 1970, 1972.

When the defendant, McConnell, failed to appear and defend, as the issue was pending in the Court on the appeal, the plaintiff had a right to proceed ex parte, to make out his case. But he was bound to make out a prima facie case, by evidence to the jury, before he was entitled to a judgment. And after the issue was made up in Court, he had no right to proceed further with his affidavit or execution, till he obtained a judgment, and sued out an execution upon that judgment.

We think the Court erred in ruling that the defendant’s affidavit be dismissed, and that the execution proceed, and we, therefore, order that the judgment be reversed, and that the cause be remanded for another hearing.