McFarlin v. Breves

73 S.E. 862, 10 Ga. App. 581, 1912 Ga. App. LEXIS 619

Opinion

Russell, J.

1. There was no motion to dismiss the levy of the mortgage fi. fa. upon the ground that the justice of the peace had not notified the mortgagor at the time of issuing the execution upon the affidavit of foreclosure, and, in the absence of' an appropriate request,‘the judge did not err in failing to charge the jury that it was the duty of the magistrate, with whom the mortgage and affidavit to foreclose it were filed, to give notice to the mortgagor of the proceedings to foreclose, at the time of issuing the execution, and that if the proof showed that he failed to do this, the jury should find for the plaintiff. 3STor did the court err in overruling the objection to the mortgage fi. fa., based upon the ground that it did not show that the justice of the peace had given notice to the defendant in fi. fa. as required by law.

2. It is optional to take either the exemption provided by § 3416, or the exemption declared in § 3414, of the Civil Code (1910), but one can not take both the exemptions. Civil Code (1910), § 6585.

3. The evidence authorized the verdict, and there was no error in refusing a new trial. Judgment affirmed. Pottle, J., not presiding.