James v. Cooledge & Brother

60 S.E. 182, 129 Ga. 860, 1908 Ga. LEXIS 211

• Court: Supreme Court of Georgia
• Decided: February 7, 1908
• Status: Published

Opinion

Atkinson, J.

1. When an affidavit of illegality has been filed to the levy of a fi. fa., and has been returned by the levying officer to the proper court for trial, the pleadings are the fi. fa. and the affidavit. Miller v. Perkerson, 128 Ga. 465.

2. Where the only ground of illegality is alleged to be that the fi. fa., special in its nature and against specific property, is levied upon other property of the defendant, and for that reason the levy is illegal, the court will, on inspection, compare the grounds of the illegality with the fi. fa.; and if the fi. fa. is found to be general as well as special, the illegality will be dismissed.

3. An execution commanding the sheriff that of the goods and chattels, lands and tenements, of the Georgia Western Cotton Mills as principal, and J. S. James as security, and especially of the following lands and improvements thereon of the Georgia Western Cotton Mills, to wit, town lots of land numbers 4, 8 to 25, in lot 62 qf said town of Douglas-ville, Georgia, etc., is a general execution against the two named defendants as well as a special execution against the described property.

4. Where there is a conflict between the bill of exceptions and the transcript of the record, the conflict must be determined by inspection of the transcript. Southern Ry. Co. v. Flemister, 120 Ga. 524.

Judgment aflvrmed.

All the Justices concur, except Holden, J., who did not preside.