Callaway v. Walls

54 Ga. 167

• Court: Supreme Court of Georgia
• Decided: January 15, 1875
• Status: Published

Opinion

Warner, Chief Justice.

The plaintiff in a lien fi. fa. ruled the sheriff of Baldwin county, calling upon him to return the papers placed in his hands into court, and show cause why he should pay to the plaintiff the money due on the fi.fa.. The sheriff answered the rule in writing, under oath, which was not traversed, and returned the papers into court, from which it appeared that a counter-affidavit had been filed by a contesting creditor, and the proceedings arrested. The court, upon an inspection of the affidavit foreclosing the lien upon which the execution issued, quashed the execution, and discharged the rule against the sheriff, whereupon the plaintiff excepted.

1. It appears on the face of the affidavit of foreclosure of the lien that the plaintiff had not averred therein a demand for the payment of his debt upon the owner of the property levied on, and his refusal to pay, or that the lien was prosecuted within one year alter the debt became due, as required by the 1991st section of the Code, and that was one of the grounds upon which the contesting creditor attacked the plaintiff’s lien on the property.

2. The foreclosure of the mortgage was'not a valid foreclosure on personal property, because it was not alleged that the defendant resided in Baldwin county, where the mortgage was foreclosed, at the date of the foreclosure, or where he did reside. We find no error in the judgment of the court on the statement of facts disclosed in the record.

Let the judgment of the court below be affirmed.