Byrd & Co. v. Interstate Chemical Co.

91 S.E. 578, 19 Ga. App. 412, 1917 Ga. App. LEXIS 133

Opinion

Bloodworth, J.

The defendant in execution having failed to make the sheriff of the county a party to the traverse, of the entry of service (Civil Code, § 5566),-and having failed to give the sheriff any notice whatever thereof, the entry of service appearing to haye been made by a deputy sheriff, who was made a party, the illegality proceeding could have had no other legal termination than in favor of the defendant in error. Georgia Railway & Power Co. v. Davis, 14 Ga. App. 790 (82 S. E. 387); Rawlings v. Brown, 15 Ga. App. 162 (3), 164 (82 S. E. 803); Citizens Bank of Bainbridge v. Fort, 15 Ga. App. 427 (83 S. E. 678) ; Southern States Phosphate & Fertilizer Co. v. Clark, ante, 376. While this fatal defect should properly have been reached by a timely motion to strike the traverse, yet under the facts of the case the court did not err in directing, upon motion, a verdict for the plaintiff in execution and against the affidavit of illegality. .

Judgment affirmed.

Broyles, P. J., and Jenhms, J., concur.

Affidavit of illegality; from city court of Nashville—Judge Christian. June 21, 1915. , .

J. D. Lovett, for plaintiff in error.' W. B. Smith, contra.