Moultrie Lumber Co. v. Jenkins

Supreme Court of Georgia

Moultrie Lumber Co. v. Jenkins

49 S.E. 678, 121 Ga. 721, 1905 Ga. LEXIS 54

CourtSupreme Court of Georgia

DecidedJanuary 27, 1905

StatusPublished

Cited by9 cases

This text of 49 S.E. 678 (Moultrie Lumber Co. v. Jenkins) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moultrie Lumber Co. v. Jenkins, 49 S.E. 678, 121 Ga. 721, 1905 Ga. LEXIS 54 (Ga. 1905).

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Opinion

Lamar, J.

(After stating the facts.) Where a laborer’s lien has been. foreclosed under the Civil Code, § 2816, the execution issued thereon operates -as final process. The office of the counter-affidavit is to convert this final process into ‘mesne process and raise an issue which must there be passed upon by the proper tribunal. But until there is such an affidavit there is no case, nothing to be returned to a court, no pleading to be amended, and no issue to be tried. If, therefore, the counter-affidavit was void, the defendant was not in a position, on this hearing, to have a ruling as to the validity of the foreclosure or levy. The Civil Code, § 4417, expressly declares that “attorneys can not take affidavits required of their clients, unless specially permitted by law.” The word “take” in this section was construed,in Wilkowski v. Halle, 37 Ga. 681, to mean that he can not administer an oath to his client. The affidavit, being one which counsel was prohibited from certifying, was void. It should not have been received by the levying officer. • It was ineffective to arrest the levy or to convert the final process into mesne process. There was nothing in court by which to amend. The case was properly dismissed.

Judgment affirmed.

All the Justices concur.

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Lamar, J.

(After stating the facts.) Where a laborer’s lien has been. foreclosed under the Civil Code, § 2816, the execution issued thereon operates -as final process. The office of the counter-affidavit is to convert this final process into ‘mesne process and raise an issue which must there be passed upon by the proper tribunal. But until there is such an affidavit there is no case, nothing to be returned to a court, no pleading to be amended, and no issue to be tried. If, therefore, the counter-affidavit was void, the defendant was not in a position, on this hearing, to have a ruling as to the validity of the foreclosure or levy. The Civil Code, § 4417, expressly declares that “attorneys can not take affidavits required of their clients, unless specially permitted by law.” The word “take” in this section was construed,in Wilkowski v. Halle, 37 Ga. 681, to mean that he can not administer an oath to his client. The affidavit, being one which counsel was prohibited from certifying, was void. It should not have been received by the levying officer. • It was ineffective to arrest the levy or to convert the final process into mesne process. There was nothing in court by which to amend. The case was properly dismissed.

Judgment affirmed.

All the Justices concur.

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Bluebook (online)

49 S.E. 678, 121 Ga. 721, 1905 Ga. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moultrie-lumber-co-v-jenkins-ga-1905.

Opinion

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