Burnett v. Fouche

Supreme Court of Georgia

Burnett v. Fouche

77 Ga. 550

CourtSupreme Court of Georgia

DecidedDecember 21, 1886

StatusPublished

Cited by3 cases

This text of 77 Ga. 550 (Burnett v. Fouche) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burnett v. Fouche, 77 Ga. 550 (Ga. 1886).

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Opinion

Hall, Justice.

This.case comes before this court upon exception to the judgment of the superior court dismissing a second affida[551]*551vit of illegality by defendant to plaintiff’s execution. The decision complained of was made at the February term, 1886, of Polk superior court. The first affidavit, after being amended, and the amendment having been withdrawn by the defendant was dismissed at the previous term of the court, on the 12th day of November, 1885, and from this judgment no writ of error was taken.

The second affidavit, as originally filed, set forth no reason why it should be allowed or entertained in accordance with the requirements of the 31st rule of practice of the superior court, which declares that “no second affidavit of illegality shall be received by any sheriff, or other officer, for causes which existed, or were known or, in the exercise of reasonable diligence, might have been known at the time of filing the first.” Code, p. 1349, and citations under the rule. The day after this affidavit had been disposed of by being dismissed on demurrer, the defendant filed in court, but without any leave previously obtained, an amendment thereto, in which an attempt was made to comply with the rule by alleging therein “ that the facts on which this affidavit rests were unknown to him when he filed his first affidavit and the amendment thereto, and only came to his knowledge a few days previous to the 5th day of December, 1885.” Had this amendment been offered in time, it is obvious that it is not a compliance with the condition on which, under the rule, a second affidavit of illegality could be received, as no diligence whatever to ascertain the facts was shown. Apart from other defects and insufficiencies appearing upon its face, which it is unnecessary to particularize, this alone required the court to sustain the demurrer, and to order it to be dismissed. Bésides, it is difficult, if not impossible, to reconcile this statement with others set out in the first and also in the second affidavit, touching the information of facts on which the defendant filed each of them.

The affidavits are utterly destitute of merit, and the circumstances attending their filing, as well as those which [552]*552transpired during the trial, justify the conclusion that this writ of error could have been brought and prosecuted for delay only, and therefore we are constrained to comply with the plaintiff’s request, and award him ten per cent, damages.

Judgment affirmed, with damages.

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Hall, Justice.

This.case comes before this court upon exception to the judgment of the superior court dismissing a second affida[551]*551vit of illegality by defendant to plaintiff’s execution. The decision complained of was made at the February term, 1886, of Polk superior court. The first affidavit, after being amended, and the amendment having been withdrawn by the defendant was dismissed at the previous term of the court, on the 12th day of November, 1885, and from this judgment no writ of error was taken.

The second affidavit, as originally filed, set forth no reason why it should be allowed or entertained in accordance with the requirements of the 31st rule of practice of the superior court, which declares that “no second affidavit of illegality shall be received by any sheriff, or other officer, for causes which existed, or were known or, in the exercise of reasonable diligence, might have been known at the time of filing the first.” Code, p. 1349, and citations under the rule. The day after this affidavit had been disposed of by being dismissed on demurrer, the defendant filed in court, but without any leave previously obtained, an amendment thereto, in which an attempt was made to comply with the rule by alleging therein “ that the facts on which this affidavit rests were unknown to him when he filed his first affidavit and the amendment thereto, and only came to his knowledge a few days previous to the 5th day of December, 1885.” Had this amendment been offered in time, it is obvious that it is not a compliance with the condition on which, under the rule, a second affidavit of illegality could be received, as no diligence whatever to ascertain the facts was shown. Apart from other defects and insufficiencies appearing upon its face, which it is unnecessary to particularize, this alone required the court to sustain the demurrer, and to order it to be dismissed. Bésides, it is difficult, if not impossible, to reconcile this statement with others set out in the first and also in the second affidavit, touching the information of facts on which the defendant filed each of them.

The affidavits are utterly destitute of merit, and the circumstances attending their filing, as well as those which [552]*552transpired during the trial, justify the conclusion that this writ of error could have been brought and prosecuted for delay only, and therefore we are constrained to comply with the plaintiff’s request, and award him ten per cent, damages.

Judgment affirmed, with damages.

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77 Ga. 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnett-v-fouche-ga-1886.

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