Beall v. Bailey

45 Ga. 300

• Court: Supreme Court of Georgia
• Decided: January 15, 1872
• Status: Published

Opinion

McCay, Judge.

The Revised Code, section 3613, is positive and precise that the officer shall return the affidavit and bond to the next term of the Court from which the execution issued, and it shall be the duty of the Court, at the first term thereof, to determine the same. The plaintiff in this case is well satisfied that the affidavit is very lame and was only interposed for delay. Suppose it is. That does not make it returnable to a different term. It is important that the rule be kept uniform. The return of the papers is the only notice either gets of the pendancy of the illegality, and it is important, both to the plaintiff and defendant, that each party shall know when the case is to be heard. The case of Brown & Wright vs. Smith & Leonard, 24 Georgia Reports, 418, is precisely in point. There the certiorari was frivolous. But this Court overruled the Judge in taking it up at a term too soon. The statute is positive and must be obeyed. Judgment reversed.