Pace v. Tarver

92 S.E. 227, 19 Ga. App. 708, 1917 Ga. App. LEXIS 318

• Court: Court of Appeals of Georgia
• Decided: April 5, 1917
• Docket: 8019
• Status: Published

Opinion

Broyles, P. J.

1. This was a money rule by W. W. Pace against a sheriff, and- the traverse to the answer of the sheriff raised no issue of fact, and accordingly there was nothing to be submitted to a jury, as provided by Civil Code (1910), § 5347. The only issue raised by-the traverse was one of law, as to whether the levy by the sheriff of the attachment fi. fa. of the Amerieus Grocery Company was legal, and, under the facts of the ease, the court did not err in striking the traverse as being insufficient in law.

2. After the traverse of the answer of the sheriff was stricken, the court did not err in entering up judgment directing the distribution of the fund in the hands of the sheriff as prayed for in his answer.

(a) That part of the traverse which specifically denied the sheriff’s entry of levy of the attachment fi. fa. of the Amerieus Grocery Company was in reality a traverse to the entry, and should have been made at the first' term after the notice of such entry, and moreover it could not have been made then by any one except the defendant in the attachment proceedings, who was Chris Baker, and not the plaintiff in error. Civil Code (1910), § 5566. Lamb v. Dozier, 55 Ga. 677; Griffith v. Shipp, 49 Ga. 231; Evans v. Smith, 101 Ga. 86 (28 S. E. 617) ; Rawlings v. Brown, 15 Ga. App. 162 (82 S. E. 803); Turpie v. Cox, 18 Ga. App. 424 (89 S. E. 492).

3. It does not appear from the record that the sheriff’s answer to the rule issued against him was verified. This omission, however, was an amendable defect, and, it not appearing that this point was made at the trial, the plaintiff in error will be held to have waived the irregularity. Kelly v. Murphy, 135 Ga. 515 (69 S. E. 826); Black v. Weaver, 7 Ga. App. 507 (67 S. E. 389).

Judgment affirmed.

Jenleins and Bloodworth, JJ., concur.