Huckaby v. Brooks

1 Ga. L. Rep. 162

Opinion

Jackson, C. J.

Where a distress warrant has been sued out and levied on personalty, and subsequently the plaintiff made an affidavit to the effect that the property levied on.was not exempt from levy and sale under the homestead and exemption laws, and thereupon the defendant, without filing any affidavit, denying the indebtedness or giving-bond, made an affidavit that the property was exempt from levy and sale, it was properly dismissed on motion. A counter-affidavit resisting a distress warrant can be filed only by alleging that the debt, or some part of it, is not due, and giving security for the eventual condemnation money. Section 2028 et seq. of the Code, in respect to the mode of arresting the levy of an execution on homesteads and exemptions by counter-affidavit, does not apply to the mode of arresting and stopping the process of distraints for rent. To set up title to property as an exemption or homestead against them, the proper proceeding.is by claim, not by counter-affidavit. Code, §§4082, 4083, 2028, 2029, 4084, 3773; 42 Ga., 179; 63 Id., 519, 735.

Allen & Tisinger, for plaintiff in error. B. D. Hardaway, by M. H. Sandwich, for defendant.

Judgment affirmed.