Jackson v. Fincher

Court of Appeals of Georgia

Jackson v. Fincher

195 S.E.2d 765, 128 Ga. App. 152, 1973 Ga. App. LEXIS 1419

CourtCourt of Appeals of Georgia

DecidedFebruary 12, 1973

Docket47772

StatusPublished

This text of 195 S.E.2d 765 (Jackson v. Fincher) 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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Jackson v. Fincher, 195 S.E.2d 765, 128 Ga. App. 152, 1973 Ga. App. LEXIS 1419 (Ga. Ct. App. 1973).

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Opinion

Evans, Judge.

This case is almost identical with the case of Jackson v. Fincher, 128 Ga. App. 148, and is controlled by the rulings made therein.

There is a slight difference, which we point out. In this case, in his original counter-affidavit Curtis Jackson did not plainly aver that he was filing same as a creditor of Leslie Lewis, as is authorized by Code § 67-2401 (6), although his later pleadings show him to be such creditor. But neither was the affidavit of Jim Fincher, initiating the foreclosure proceeding, in proper form, for failure to aver any demand and [153]*153refusal to pay by the debtor, and failing to aver any good and proper reason permitted under the statute for such failure to aver. See Code § 67-2401 (1).

Submitted January 5, 1973 — Decided February 12, 1973. James A. Robbins, Jr., for appellant. Patton & Flinn, C. Ronald Patton, for appellee.

But when the case is returned to the lower court, under Code § 81-1203 and citations thereunder both the initial affidavit and counter-affidavit may be amended to supply the deficiencies now existing therein, which right will inhere equally in each party to this proceeding.

For the reason stated in Jackson v. Fincher, the judgment of the lower court is reversed.

Judgment reversed.

Hall, P. J., and Clark, J., concur.

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Evans, Judge.

This case is almost identical with the case of Jackson v. Fincher, 128 Ga. App. 148, and is controlled by the rulings made therein.

There is a slight difference, which we point out. In this case, in his original counter-affidavit Curtis Jackson did not plainly aver that he was filing same as a creditor of Leslie Lewis, as is authorized by Code § 67-2401 (6), although his later pleadings show him to be such creditor. But neither was the affidavit of Jim Fincher, initiating the foreclosure proceeding, in proper form, for failure to aver any demand and [153]*153refusal to pay by the debtor, and failing to aver any good and proper reason permitted under the statute for such failure to aver. See Code § 67-2401 (1).

Submitted January 5, 1973 — Decided February 12, 1973. James A. Robbins, Jr., for appellant. Patton & Flinn, C. Ronald Patton, for appellee.

But when the case is returned to the lower court, under Code § 81-1203 and citations thereunder both the initial affidavit and counter-affidavit may be amended to supply the deficiencies now existing therein, which right will inhere equally in each party to this proceeding.

For the reason stated in Jackson v. Fincher, the judgment of the lower court is reversed.

Judgment reversed.

Hall, P. J., and Clark, J., concur.

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195 S.E.2d 765, 128 Ga. App. 152, 1973 Ga. App. LEXIS 1419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-fincher-gactapp-1973.

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