Melton v. Hicks

67 S.E. 116, 7 Ga. App. 462, 1910 Ga. App. LEXIS 348

Opinion

Hill, O. J.

1. It is expressly ruled by this court in Brantley Co. v. Southerland, 1 Ga. App. 804 (57 S. E. 960), that a traverse of the answer of the sheriff in response to a rule for alleged breach of duty can be filed, in the absence of laches, at any times before the case is called for trial. The facts in this case exonerate the plaintiff from any laches in filing his traverse to the sheriff’s answer to the rule.

2. This court knows of no law requiring the plaintiff to swear to his traverse of the answer of a sheriff ruled for breach of duty. Even if required to do so, the failure would be an amendable defect. Civil Code, §5122.

3. The judgment of the trial court, sustaining the motion to dismiss the traverse and dismissing the rule against the sheriff, is Reversed.