Hambrick v. Crawford , 55 Ga. 335 ( 1875 )

Bleckley, Judge.

The notes of decision, as read from the bench, and set out above, present very fully the views of the court on the several points embraced in this case.

The remedy by affidavit of illegality was adequate and ample, if the defendant had used it, to the full extent, when he had recourse to it. The mistake of his counsel in confining the affidavit to one ground only, which proved insufficient, cannot be recognized as a good excuse for omitting the other grounds. If the mistakes of counsel in their professional opinions, acted upon in the conduct .of litigation, were cause for renewing or continuing the litigation after judgment, there would be no end to anything. In the nature of things, the risk of such mistakes must be incurred, and there is no relief against their consequences. Nor is the matter, in a legal or judicial aspect, the least altered by the fact that the given mistake may have been committed in following and rélying upon unsound judicial decisions made in previous cases of like kind. The books are full of unsafe precedents. The two decisions accepted by counsel as a guide in this case were not concurred in by a full bench, and he had that much to warn him of their mutability. But did they prove unsound? or -were they varied or departed from ? Rather, were they not followed and applied in deciding the very case which the counsel made under them ? See 50th Georgia Reports, 266, 279, 582; 53d Ibid., 352.

All the matters set out in the bill as reasons for arresting the enforcement of the execution against the complainant’s property, would be as available, at law, by affidavit of illegality, as in equity, by injunction. In so far as they are good at all, they are matters of plain legal right, though which of them are good and which not we do not determine. If there had been a sufficient excuse for leaving them out of the affidavit' of illegality which was filed, a second affidavit could have been resorted to; for no suitor is compelled to appear on the equity side of the court: Code, section 3082; and when an execution is proceeding illegally by levy upon property, the remedy by affidavit of illegality is given in all cases : Code, section 3664. The rule of court which declares that no second affidavit shall be received, is to be construed as limited by these broad provisions of the Code. Generally, a second affidavit cannot be received,, nor should it be. But where the grounds it alleges were not embraced in the first, and were left out without any fault, negligence, error or oversight of the party or his counsel, and it so appears on the face of the second affidavit, it would be a clear violation of the Code to deny this remedy and force the party into equity.

Judgment reversed.