Byrd & Co. v. Interstate Chemical Co.

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

• Court: Court of Appeals of Georgia
• Decided: February 16, 1917
• Docket: 7743
• Status: Published

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.