Goodwyn v. Bennett

Court of Appeals of Georgia

Goodwyn v. Bennett

152 S.E. 605, 41 Ga. App. 285, 1930 Ga. App. LEXIS 535

CourtCourt of Appeals of Georgia

DecidedMarch 5, 1930

Docket20203

StatusPublished

Cited by1 cases

This text of 152 S.E. 605 (Goodwyn v. Bennett) 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.

Bluebook

Goodwyn v. Bennett, 152 S.E. 605, 41 Ga. App. 285, 1930 Ga. App. LEXIS 535 (Ga. Ct. App. 1930).

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Opinion

Broxi.es, C. J.

1. The affidavit of illegality was not verified or signed by the person against whom the execution issued, as required by section 5305 of the Civil Code of 1910. Therefore the affidavit was a nullity, and the court did not err in dismissing it on motion. Burgess v. Calhoun National Bank, 28 Ga. App. 534 (2) (112 S. E. 292), and citations.

2. The bill of exceptions recites, that, subsequent to the motion to dismiss the affidavit, “the defendant offered to amend the grounds of the affidavit of illegality by verifying the same under oath, and also to amend the substance of the .illegality,” and that the court refused to allow the amendment. Exception was taken to that judgment. However, the amendment was not set out in the bill of exceptions, nor otherwise duly authenticated by the judge. The amendment, therefore, did not constitute a part of the record, and this court can not consider what purports to be a copy of it sent up by the clerk of the trial court in the transcript of the record. Sibley v. Mutual Life Association, 87 Ga. 738 (2) (13 S. E. 838); Barnett v. East Tenn. Ry. Co., 87 Ga. 766 (2) (13 S. E. 904); Walker v. Equitable Co., 114 Ga. 862 (7) (40 S. E. 1010). Judgment affirmed.

Jjuke and Bloodworth, JJ., concur.

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Broxi.es, C. J.

1. The affidavit of illegality was not verified or signed by the person against whom the execution issued, as required by section 5305 of the Civil Code of 1910. Therefore the affidavit was a nullity, and the court did not err in dismissing it on motion. Burgess v. Calhoun National Bank, 28 Ga. App. 534 (2) (112 S. E. 292), and citations.

2. The bill of exceptions recites, that, subsequent to the motion to dismiss the affidavit, “the defendant offered to amend the grounds of the affidavit of illegality by verifying the same under oath, and also to amend the substance of the .illegality,” and that the court refused to allow the amendment. Exception was taken to that judgment. However, the amendment was not set out in the bill of exceptions, nor otherwise duly authenticated by the judge. The amendment, therefore, did not constitute a part of the record, and this court can not consider what purports to be a copy of it sent up by the clerk of the trial court in the transcript of the record. Sibley v. Mutual Life Association, 87 Ga. 738 (2) (13 S. E. 838); Barnett v. East Tenn. Ry. Co., 87 Ga. 766 (2) (13 S. E. 904); Walker v. Equitable Co., 114 Ga. 862 (7) (40 S. E. 1010). Judgment affirmed.

Jjuke and Bloodworth, JJ., concur.

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Bluebook (online)

152 S.E. 605, 41 Ga. App. 285, 1930 Ga. App. LEXIS 535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goodwyn-v-bennett-gactapp-1930.

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