Melba's Dress Shop v. Commercial Factors Corp.

Court of Appeals of Georgia

Melba's Dress Shop v. Commercial Factors Corp.

102 S.E.2d 45, 96 Ga. App. 866, 1958 Ga. App. LEXIS 930

Court of Appeals of Georgia·Decided January 20, 1958·No. 36946; 36947; 36948·Published

Opinion

Carlisle, Judge.

To the levy of fi. fas. on behalf of three judgment creditors, P. L. Gaskins and Melba Gaskins, doing business as Melba’s Dress Shop, interposed affidavits of illegality, all of which, though varying in wording, were in substance as follows: “Defendant shows that at the time the suit was filed in the above stated case that the attorneys for the plaintiff [867] stated to defendant that if she would not file a defense but permit plaintiff to take a judgment against her that she would be allowed and pennitted to pay said judgment without levy being made on any of her property, and defendant, relying and acting on the promises of plaintiff’s attorneys did not avail herself of her right to file a defense, and has made payments continuously on said execution as will be shown by said execution.” In each case, the trial court sustained oral motions to dismiss and the exceptions here are to those judgments. Held:

Decided January 20, 1958. Hugh D. Wright, Elsie H. Griner, for plaintiffs in error. McCall & Griffis, S. B. McCall, contra.

Assuming, but not deciding, that an agreement of the nature indicated, if valid, would constitute the basis for an affidavit of illegality, and assuming that the allegations that defendant forbore to file defenses, sufficiently allege consideration moving to the plaintiffs, the allegations of the affidavits in these cases were too vague, uncertain, and indefinite to set forth a binding and enforceable' agreement in that they failed to show what agreement there was between the parties as to the dates and amounts of the payments to be made, and for this reason the trial court did not err in sustaining the motion to dismiss them. Lightfoot v. King, 25 Ga. App. 80 (1) (102 S. E. 468); Stanaland v. Stephens, 78 Ga. App. 68 (2) (50 S. E. 2d 258); Reid v. Hemphill, 82 Ga. App. 391, 394 (1) (61 S. E. 2d 201); Williams v. Gottlieb, 90 Ga. App. 438 (1) (83 S. E. 2d 245).

Judgments affirmed.

Gardner, P. J., and Townsend, J., concur.

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Carlisle, Judge.

To the levy of fi. fas. on behalf of three judgment creditors, P. L. Gaskins and Melba Gaskins, doing business as Melba’s Dress Shop, interposed affidavits of illegality, all of which, though varying in wording, were in substance as follows: “Defendant shows that at the time the suit was filed in the above stated case that the attorneys for the plaintiff [867] stated to defendant that if she would not file a defense but permit plaintiff to take a judgment against her that she would be allowed and pennitted to pay said judgment without levy being made on any of her property, and defendant, relying and acting on the promises of plaintiff’s attorneys did not avail herself of her right to file a defense, and has made payments continuously on said execution as will be shown by said execution.” In each case, the trial court sustained oral motions to dismiss and the exceptions here are to those judgments. Held:

Decided January 20, 1958. Hugh D. Wright, Elsie H. Griner, for plaintiffs in error. McCall & Griffis, S. B. McCall, contra.

Assuming, but not deciding, that an agreement of the nature indicated, if valid, would constitute the basis for an affidavit of illegality, and assuming that the allegations that defendant forbore to file defenses, sufficiently allege consideration moving to the plaintiffs, the allegations of the affidavits in these cases were too vague, uncertain, and indefinite to set forth a binding and enforceable' agreement in that they failed to show what agreement there was between the parties as to the dates and amounts of the payments to be made, and for this reason the trial court did not err in sustaining the motion to dismiss them. Lightfoot v. King, 25 Ga. App. 80 (1) (102 S. E. 468); Stanaland v. Stephens, 78 Ga. App. 68 (2) (50 S. E. 2d 258); Reid v. Hemphill, 82 Ga. App. 391, 394 (1) (61 S. E. 2d 201); Williams v. Gottlieb, 90 Ga. App. 438 (1) (83 S. E. 2d 245).

Judgments affirmed.

Gardner, P. J., and Townsend, J., concur.

Melba's Dress Shop v. Commercial Factors Corp., 102 S.E.2d 45, 96 Ga. App. 866, 1958 Ga. App. LEXIS 930 (Ga. Ct. App. 1958).

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