Miles v. Swift

Court of Appeals of Georgia

Miles v. Swift

142 S.E. 472, 38 Ga. App. 42, 1928 Ga. App. LEXIS 21

CourtCourt of Appeals of Georgia

DecidedMarch 16, 1928

Docket18366

StatusPublished

Cited by2 cases

This text of 142 S.E. 472 (Miles v. Swift) 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.

Bluebook

Miles v. Swift, 142 S.E. 472, 38 Ga. App. 42, 1928 Ga. App. LEXIS 21 (Ga. Ct. App. 1928).

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Opinion

Jenkins, P. J.

1. An order overruling a demurrer to an affidavit of illegality is such a final judgment as will support a writ of error therefrom. Civil Code (1910), § 6138; Artope v. Barker, 72 Ga. 186; Chattooga County v. Glenn, 29 Ga. App. 114 (113 S. E. 704). Accordingly, the motion to dismiss the writ of error must be denied.

2. “A defendant in fi. fa. can not by affidavit of illegality set up an unliquidated demand in his favor against the judgment demand of the plaintiff in fi. fa.” Allen v. Duval Motor Co., 36 Ga. App. 336 (136 S. E. 479); Leavel v. Frey, 133 Ga. 723 (66 S. E. 916). Accordingly, the affidavit of illegality interposed by the defendant in fi. fa., by which it was sought to set up such an unliquidated claim for damages, should have been dismissed on demurrer, and the proffered amendment, setting up such additional claim, should not have been allowed over the objection of the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur. J. B. Moore, for plaintiff. M. H. Williams, for defendant.

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Jenkins, P. J.

1. An order overruling a demurrer to an affidavit of illegality is such a final judgment as will support a writ of error therefrom. Civil Code (1910), § 6138; Artope v. Barker, 72 Ga. 186; Chattooga County v. Glenn, 29 Ga. App. 114 (113 S. E. 704). Accordingly, the motion to dismiss the writ of error must be denied.

2. “A defendant in fi. fa. can not by affidavit of illegality set up an unliquidated demand in his favor against the judgment demand of the plaintiff in fi. fa.” Allen v. Duval Motor Co., 36 Ga. App. 336 (136 S. E. 479); Leavel v. Frey, 133 Ga. 723 (66 S. E. 916). Accordingly, the affidavit of illegality interposed by the defendant in fi. fa., by which it was sought to set up such an unliquidated claim for damages, should have been dismissed on demurrer, and the proffered amendment, setting up such additional claim, should not have been allowed over the objection of the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur. J. B. Moore, for plaintiff. M. H. Williams, for defendant.

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Bluebook (online)

142 S.E. 472, 38 Ga. App. 42, 1928 Ga. App. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miles-v-swift-gactapp-1928.

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