General Motors Acceptance Corp. v. Merritt

Court of Appeals of Georgia

General Motors Acceptance Corp. v. Merritt

179 S.E. 655, 51 Ga. App. 68, 1935 Ga. App. LEXIS 558

CourtCourt of Appeals of Georgia

DecidedApril 8, 1935

Docket24276

StatusPublished

Cited by1 cases

This text of 179 S.E. 655 (General Motors Acceptance Corp. v. Merritt) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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General Motors Acceptance Corp. v. Merritt, 179 S.E. 655, 51 Ga. App. 68, 1935 Ga. App. LEXIS 558 (Ga. Ct. App. 1935).

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Opinion

Beoyles, C. J.

1. Where mortgaged property has been actually and legally sold under the levy of a mortgage execution, an affidavit of illegality, filed after such sale, is filed too late to, convert the proceeding into mesne process, and the affidavit of illegality should be dismissed on motion. See, in this connection, Civil Code (1910), §§ 3300, 3301, 3302 (Code of 1933, §§ 67-801, 67-802, 67-803) ; Smith v. McPherson, 78 Ga. 84; Kennedy v. Miller, 179 Ga. 234 (175 S. E. 588).

2. Under the foregoing ruling and the facts of this case, the court erred in overruling the written motion of the plaintiff to strike the affidavit of illegality. The motion contained the following grounds: (a) “That it appears that the property conveyed and described in said mortgage foreclosure was regularly, fairly, and legally sold on March 29, 1934.” (b) “That it appears that said affidavit of illegality was filed by said defendant on March 30, 1934.” (c) “That said affidavit of illegality filed by said defendant was filed too late to constitute any defense or to raise any issue under said mortgage foreclosure.” (d) “That at the time of the filing of said affidavit of illegality said mortgage fi. fa. had become functus officio.”

Judgment reversed.

MacIntyre and Querry, JJ., concm-.

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Beoyles, C. J.

1. Where mortgaged property has been actually and legally sold under the levy of a mortgage execution, an affidavit of illegality, filed after such sale, is filed too late to, convert the proceeding into mesne process, and the affidavit of illegality should be dismissed on motion. See, in this connection, Civil Code (1910), §§ 3300, 3301, 3302 (Code of 1933, §§ 67-801, 67-802, 67-803) ; Smith v. McPherson, 78 Ga. 84; Kennedy v. Miller, 179 Ga. 234 (175 S. E. 588).

2. Under the foregoing ruling and the facts of this case, the court erred in overruling the written motion of the plaintiff to strike the affidavit of illegality. The motion contained the following grounds: (a) “That it appears that the property conveyed and described in said mortgage foreclosure was regularly, fairly, and legally sold on March 29, 1934.” (b) “That it appears that said affidavit of illegality was filed by said defendant on March 30, 1934.” (c) “That said affidavit of illegality filed by said defendant was filed too late to constitute any defense or to raise any issue under said mortgage foreclosure.” (d) “That at the time of the filing of said affidavit of illegality said mortgage fi. fa. had become functus officio.”

Judgment reversed.

MacIntyre and Querry, JJ., concm-.

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179 S.E. 655, 51 Ga. App. 68, 1935 Ga. App. LEXIS 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-motors-acceptance-corp-v-merritt-gactapp-1935.

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