Black v. Scanlon

48 Ga. 12

• Court: Supreme Court of Georgia
• Decided: January 15, 1873
• Status: Published

Opinion

*Trippe, Judge.

1. The affidavit upon which the attachment was issued was fatally defective. Section 3200 of the Code, requires the party seeking the attachment to make an affidavit “that the debtor has placed himself in some one of the positions enumerated in this Code, and, also, of the amount of the debt claimed to be due.”

In Lockett vs. Usry, 28 Georgia, 345, which was a proceeding to dispossess a tenant holding over, the defendant filed a counter-affidavit, stating that he was “not the tenant of said Usry, and does not hold the premises either by lease or rent from......nor any other person holding under him by lease or rent.” It was held that the defect by leaving the blank in the affidavit was fatal. This case is very similar to that. “An affidavit which is the foundation of a legal proceeding cannot be amended except expressly provided for by law:” Code, section, 3453. The reasoning in the case of Lockett vs. Usry applies to this.

2. If the affidavit be thus defective and not amendable, a motion to dismiss would be in order at any time. In this case the time between the issuing the attachment and the making the motion was not as great by a year or two as it was in the case of Lockett vs. Usry from the date of the warrant to the dismissal. If there be such a defect in a process as to make it void, time does not cure it.

Judgment affirmed.