Citizens Finance Co. v. Griffin , 45 Ga. App. 508 ( 1932 )

Broyles, C. J.

1. “The issue in an illegality case is that made by the affidavit of illegality, and for the purpose of trying that issue the fi. fa., with the entry of levy, and the affidavit of illegality, constitute the pleadings.” Miller v. Perkerson, 128 Ga. 465 (57 S. E. 787) ; James v. Cooledge, 129 Ga. 860 (60 S. E. 182). It follows that in such a ease a question not raised by the affidavit of illegality can not be considered by the court. In the instant case the contention made upon the trial, that the administratrix had violated her trust and that she was personally liable, was not made in her affidavit of illegality, and should not have been considered by the trial court. It follows that the decisions in Clark v. Clark, 167 Ga. 1 (144 S. E. 787), and Mobley v. Phinizy, 42 Ga. App. 33 (155 S. E. 73), relied on by the defendant in error, have no application to the facts of this case.

2. A ground of the affidavit of illegality alleges that the execution was against Mrs. J. H. Griffin personally, and that the words “as administratrix of the estate of J. II. Griffin” are merely descriptio personae. Conceding this, the defect in the execution was cured by the amendment thereto (which was allowed by the court and to which no exception was taken) making the execution proceed against “the estate of J. II. Griffin, deceased, in the hands of Mrs. J. H. Griffin, as administratrix of said estate of J. H. Griffin, to be. administered.”

3. The remaining grounds of the original affidavit of illegality are without substantial merit, and the amendment to the affidavit is expressly abandoned in the brief of counsel for the defendant in error.

4. Under the facts of the case a finding in favor of the plaintiff in fi. fa. was demanded, and the court erred in directing a verdict for the defendant in fi. fa., and thereafter in refusing to grant a new trial.

Judgment reversed.

Luke and Hooper, JJ., concur.