Ashley v. Reynolds

Court of Appeals of Georgia

Ashley v. Reynolds

68 S.E. 651, 8 Ga. App. 78, 1910 Ga. App. LEXIS 28

CourtCourt of Appeals of Georgia

DecidedJuly 19, 1910

Docket2431

StatusPublished

This text of 68 S.E. 651 (Ashley v. Reynolds) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ashley v. Reynolds, 68 S.E. 651, 8 Ga. App. 78, 1910 Ga. App. LEXIS 28 (Ga. Ct. App. 1910).

Pincite

Opinion

Hill, C. J.

An affidavit of illegality was filed to the levy of an execution, and the ease was duly returned to the court from which the execution issued. When the case was called in its order for trial, the plaintiff in execution and his attorney were voluntarily absent without leave. The affiant made no motion to dismiss the levy, but asked to submit to the jury the evidence in support of the affidavit of illegality, he having made a timely demand for trial by a jury. The court allowed him to do so, and, at the conclusion of the evidence, directed' a verdict sus[79]*79taining tRe affidavit of illegality. Subsequently, during the same term of the court, the attorney for the plaintiff in execution made a written motion to have the verdict and judgment so rendered vacated and set aside, and the trial judge, without notice or service of this motion, passed an order setting aside the verdict and judgment. Seld, that this was error. If for any reason the judgment rendered on the verdict sustaining the affidavit of illegality was erroneous, it could have been set aside and vacated only on a regular motion for a new trial, filed and served, and heard by the trial judge. Irrespective of the merits of the affidavit of illegality, the verdict sustaining it was final and conclusive, until set aside by legal motion for a new trial. The judge was not authorized summarily to set the verdict aside and vacate the judgment' duly entered thereon. Judgment reversed.

Decided July 19, 1910.

Motion to set aside judgment; from city court of Floyd county —Judge Hamilton. September 14, 1910.

Sharp & Sharp, Hugh Bead, W. M. Henry, for plaintiff in error. M '. B. Buhantes, contra.

Free access — add to your briefcase to read the full text and ask questions with AI

Hill, C. J.

An affidavit of illegality was filed to the levy of an execution, and the ease was duly returned to the court from which the execution issued. When the case was called in its order for trial, the plaintiff in execution and his attorney were voluntarily absent without leave. The affiant made no motion to dismiss the levy, but asked to submit to the jury the evidence in support of the affidavit of illegality, he having made a timely demand for trial by a jury. The court allowed him to do so, and, at the conclusion of the evidence, directed' a verdict sus[79]*79taining tRe affidavit of illegality. Subsequently, during the same term of the court, the attorney for the plaintiff in execution made a written motion to have the verdict and judgment so rendered vacated and set aside, and the trial judge, without notice or service of this motion, passed an order setting aside the verdict and judgment. Seld, that this was error. If for any reason the judgment rendered on the verdict sustaining the affidavit of illegality was erroneous, it could have been set aside and vacated only on a regular motion for a new trial, filed and served, and heard by the trial judge. Irrespective of the merits of the affidavit of illegality, the verdict sustaining it was final and conclusive, until set aside by legal motion for a new trial. The judge was not authorized summarily to set the verdict aside and vacate the judgment' duly entered thereon. Judgment reversed.

Decided July 19, 1910.

Motion to set aside judgment; from city court of Floyd county —Judge Hamilton. September 14, 1910.

Sharp & Sharp, Hugh Bead, W. M. Henry, for plaintiff in error. M '. B. Buhantes, contra.

Cite This Page — Counsel Stack

Bluebook (online)

68 S.E. 651, 8 Ga. App. 78, 1910 Ga. App. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashley-v-reynolds-gactapp-1910.