Horn v. Bird , 45 Ga. 610 ( 1872 )

Warner, Chief Justice.

In this case there was an award made by arbitrators, in which they awarded that J. R. G. Horn and T. N. W. Horn, as administrators of J. E. J. Horn, do pay to Mary E. Bird the sum of $1,626.60, as the amount due her as her share of rents and profits, etc. This award was made the judgment of the Superior Court. An execution was issued by the Clerk in favor of Mary E. Bird, commanding the sheriff to make the money due on said judgment, of the goods and chattels, lands and tenements of J. E. J. Horn, in the hands of J. R. G. Horn and T. N. W. Horn, administrators, and in default thereof, of the goods and chattels, lands and tenements of the said Joel and Thomas Horn. The sheriff levied the execution on certain described land as the property of J. R. G. Horn and T. N. W. Horn. The defendants filed an affidavit of illegality to the execution, on the ground that the judgment was rendered against them as administrators, and should have been levied on the property of their intestate, and not upon their individual property, and that to the best of their knowledge and belief, the plaintiff’s interest in the judgment had been paid off and discharged. The plaintiff demurred to the defendant’s affidavit of illegality, which demurrer was sustained by the Court, and the defendants excepted. The defendants made a motion to amend their affidavit of illegality which was refused by the Court, and the defendant excepted. In our judgment, the Court below erred in sustaining the demurrer to the defendant’s affidavit of illegality on the statement of facts contained in the record : Code, 3515, 3581. The Court also erred in refusing the amendment offered by the defendant’s to their affidavit of illegality: Code, 3450, 3429; 26 Georgia Reports, 617.

Let the judgment of the Court below be reversed.