McLendon v. Lemon , 79 Ga. App. 751 ( 1949 )

1. The judge did not err in determining the demurrers to the affidavit of illegality at the first term after the counter-affidavit and bond were returned into court, notwithstanding that this return was made within less than 20 days prior to the first day of such term.

2. The affidavit of illegality filed by the defendant in fi. fa. amounted to nothing more than a plea of the general issue, and the court did not err in disallowing the amendment thereto and in dismissing it.

DECIDED JULY 8, 1949. REHEARING DENIED JULY 27, 1949. On November 20, 1948, a mortgage fi. fa. on personal property, returnable "on the third Monday in January, next," was issued from the City Court of Decatur in favor of E. W. Lemon, the holder of a chattel mortgage, against W. T. McLendon, and was levied on the first day of January, 1949, against certain personal property therein described as being the mortgaged property. The defendant in fi. fa. filed a counter-affidavit and bond, in which he alleged that the fi. fa. was proceeding illegally "for the following reasons: This deponent, defendant in said fi. fa., does not owe the plaintiff in fi. fa. any sum whatever, and there is no indebtedness now due by defendant in fi. fa. to the plaintiff in fi. fa." This counter-affidavit and bond together with the mortgage fi. fa. were returned to the clerk's office and filed on January 8, 1949, which was 9 days before the opening of the January term of the court. To this affidavit of illegality the plaintiff in fi. fa. filed a general demurrer on February 3, 1949, and on the same day filed a motion to dismiss the affidavit of illegality based on the same grounds as his demurrer. A rule nisi was issued commanding the defendant in fi. fa. to show cause on February 9, 1949, why the motion to dismiss the affidavit of illegality should not be granted, and it appears by affidavit annexed to the said rule that service of the same was made by the attorney for the plaintiff by leaving a copy of the rule at the office of the attorney for the defendant. On February 25 the Judge of the City Court of Decatur entered an order sustaining the motion to dismiss and commanding the Sheriff of DeKalb County to proceed with the sale of the property levied upon. On the same day the defendant in fi. fa. sought to amend his affidavit of illegality by setting up his defense in detail, but the court disallowed the amendment on the ground that it did not comply with the requirement of the Code, § 39-1005. To this ruling, disallowing the amendment, the defendant filed exceptions pendente lite. The case comes to this court upon a bill of exceptions assigning error on the order of the court disallowing the amendment to the affidavit of illegality and to the order dismissing the affidavit. 1. The defendant contends that the court erred in deciding this case at the January term of the City Court of Decatur. He bases this contention on the fact that the proceeding was returned to the clerk of the court within a period of less than 20 days before the January term and was docketed to the March term of the court, and he relies on the provisions of the Code, § 81-111. We do not think that this Code section is applicable to the facts of this case; and neither do we think that Penn Mutual Life Ins. Co. v. Troup, 177 Ga. 456 (6a), 457 (170 S.E. 359), Atlantic Coast Line R. Co. v. GeorgiaSweet Potato Growers Assn., 171 Ga. 30, 31 (154 S.E. 698), and the other cases cited and relied on by the plaintiff in error, are in point.

This case was proceeding under the provisions of the Code, Chapters 67-7 and 67-8. Section 67-803 provides that, "When an affidavit of illegality shall be filed as in section 67-801 provided for, and the mortgagor or his special agent or attorney shall give bond, with good and sufficient security. . the levying officer shall postpone the sale of said property, and return all the proceedings and papers in the case to the court from which the execution issued, where the issue shall be tried as other cases of illegality." Section 39-1006 sets forth how an illegality shall be returned and tried. It reads, "When the levy shall have been made, and affidavit and bond delivered to the officer as herein provided, it shall be the duty of such officer to suspend further proceedings on such execution, and return the execution, affidavit, and bond to the next term of the court from which the execution issued; and it shall be the duty of said court to determine thereon at the first term thereof, unless the plaintiff or his attorneys shall desire to controvert the facts contained in said affidavit in which case an issue shall be joined, which issue shall be tried by a jury at the same term, unless good cause is shown for a continuance." We think that these Code sections mean just what they say, and that under the facts of this case it was triable at the January term of the court. The case of Davis v. Williams, 148 Ga. 765 (98 S.E. 338), appears to be directly in point and controlling of the case at bar in this respect. SeeBeall v. Bailey, 45 Ga. 300.

2. The trial court did not err in disallowing the amendment and in dismissing the affidavit of illegality. The affidavit originally filed amounted merely to a plea of the general issue and set up no defense to the foreclosure of the mortgage. Cook v. Cobb Roper, 22 Ga. App. 328 (95 S.E. 1022); Gosa v.E. A. Clark Sons, 43 Ga. App. 310 (158 S.E. 608). This being the case, there was nothing to amend by, and the court did not err in disallowing the amendment. Bell v. Scarbrough,68 Ga. App. 63 (22 S.E.2d 113), relied upon by the plaintiff in error, is distinguishable on its facts from the instant case. Furthermore, the affidavit of McLendon which was attached to the amendment was in the following words: ". . W. T. McLendon, who being duly sworn on oath, deposed and said that the facts and things contained in the foregoing amendment are true; that the same were not omitted from the original affidavit for the purpose of delay, and are not now offered for the purpose of delay." This was not a sufficient compliance with the requirements of the Code, § 39-1005, as held by the trial judge, and this was sufficient ground for disallowing the amendment.

Judgment affirmed. Sutton, C. J., and Felton, J., concur.