Bainbridge Stock Co. v. Kráuse-McFarlin Co.

68 S.E. 1013, 8 Ga. App. 220, 1910 Ga. App. LEXIS 110

• Court: Court of Appeals of Georgia
• Decided: September 20, 1910
• Docket: 2080
• Status: Published

Opinion

Russell, J.

1. An affidavit made to foreclose a mortgage under section 2754 of the Civil Code of 1895, and which stated that the defendant mortgagor had “placed himself in some one of the positions where process of attachment could legally issue against him,” was amendable; and the plaintiff should have been allowed to amend, as he offered to do, by stating that the defendant was a non-resident of the State, and that this was ground' of attachment relied upon.

2. The copy of the mortgage, attached to the foreclosure affidavit, was verified by the statement in the affidavit. In any event the plaintiff’s offer to amend the affidavit by signing it should have been permitted.

3. The provisions of section 5122 of the Civil Code of 1895, relative to the amendment of affidavits, are to be given a broad and liberal construction. Collins v. Taylor, 128 Ga. 789 (58 S. E. 446).

4. If the requirements for the foreclosure of a chattel mortgage have been substantially complied with, a claimant is not hurt by amendable irregularities, for the real issue made by the claim is whether the property is the defendant’s or his own. Judgment reversed.

Levy and claim; from city court of Bainbridge — Judge Harrell'. My 1, 1909. ■

M. E. O’Neal, B. G. Hartsfield, for plaintiff. 'J. C. Kail, E. O. Love, for defendant.