Benjamin v. Elliott

97 S.E. 104, 22 Ga. App. 701, 1918 Ga. App. LEXIS 697

• Court: Court of Appeals of Georgia
• Decided: October 16, 1918
• Docket: 9684
• Status: Published

Opinion

Luke, J.

Where a distress warrant is issued and levied) and counter-affidavit is made and bond given, based on an affidavit as follows: “Before me comes'Katherine Benjamin, Agt. J. B. Benjamin, who, being' duly sworn, deposes and says that W. B. Elliott of said county is justly indebted to deponent in the sum of one hundred and forty-seven dollars and fifty cents ($147.50), for rent of Benjamin’s farm near West Rome, which is now d,ue and unpaid,” the affidavit xhay be amended by'striking the word “deponent” and inserting in lieu thereof the word “J. B. Benjamin.” Especially is this true where the counter-affidavit admits renting the premises from J. B. Benjamin and seeks a judgment against J. B. Benjamin. The court erred in rejecting the amendment and *in thereafter dismissing the distress warrant. Park’s Ann. Code, §§ 5706, 5559; Collins v. Taylor, 128 Ga. 789 (58 S. E. 446); Penn v. McGhee, 6 Ga. App. 631 (65 S. E. 686).

Judgment reversed.

Wade, C. J., 'and Jenhins, J., concur.