Cagle v. Baldwin State Bank

151 S.E. 528, 40 Ga. App. 783, 1930 Ga. App. LEXIS 694

• Court: Court of Appeals of Georgia
• Decided: January 23, 1930
• Docket: 19781
• Status: Published

Opinion

Bell, J.

1. An entry of service must be traversed at the first term after notice, and before pleading to the merits. In the present case the defendant appeared and pleaded to the merits at the first term, and did not file his traverse until a later term. The traverse was therefore too late, and tlie court did not err in striking it. Civil Code (1910), § 5566; Everett v. Holcomb, 1 Ga. App. 794 (3) (58 S. E. 287).

2. Assuming’, without deciding, that the deed made to secure the note sued on was void because of insufficient description of the land, the defendant maker could not upon this ground resist the setting up of a special lien upon the land in accordance with the description as given, since as between the plaintiff and the defendant, and as to this proceeding, the defendant was estopped from raising any such question. Neal v. Harber, 35 Ga. App. 628 (2) (134 S. E. 347).

3. The petition having been amended without any objection on the part of the defendant, no question is presented as to whether the amendment set forth a new and distinct cause of action, or as to whether the evidence supported the petition as originally drawn. The evidence demanded the verdict in favor of the plaintiff on the petition as amended. The court therefore did not err in directing such verdict, nor does any other error appear.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.