Peters v. Baker

Supreme Court of Georgia

Peters v. Baker

54 Ga. 338

DecidedJanuary 15, 1875

StatusPublished

This text of 54 Ga. 338 (Peters v. Baker) 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

Peters v. Baker, 54 Ga. 338 (Ga. 1875).

Pincite

Opinion

McCay, Judge.

We do not think the dismissal of the affidavit of illegality for insufficiency was a bar to the motion to set aside. A demurrer is only a bar as to the question made by the pleadings. The illegality was dismissed for want of an allegation that the defendant had not appeared and pleaded. This was right enough, and no other affidavit of illegality could stop the fi. fa. on this or any other ground known at the time. But the motion stands on a different footing. The dismissal of the [340]*340illegality on demurrer is no bar to the motion, if it be on a good ground — if it meet the defects in the illegality, and this motion clearly and fully does this. It sets forth want of service; it denies any acknowledgement of service; it denies appearance or pleading, and adds that he has a good defense. The mistake of the judge below, was either in. treating a demurrer as a bar, when the present proceeding contains new facts which make a good case, or in treating' the rule that but one illegality can be filed, as extending also to motions to set aside. The rule as to illegalities turns on the nature of the proceeding. It is an effort to stop the sheriff in the execution of a process, and, very wisely, the rule is rer striated and permits the thing to be done but once, unless it be for causes that either did not exist, or were not known at the date of the first illegality. But a motion made in open court stands on common law rules; and it is a settled rule that a dismissal of a proceeding for informality or insufficiency is no bar to a new proceeding containing allegations making a good case. This court has decided that a bill or other proceeding, to which a demurrer has been sustained and the judgment affirmed by this court may, yet be amended and rendered a good proceeding; and if this be so, it seems clear that the present motion was not barred by the dismissal of the affidavit of illegality.

Judgment reversed.

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McCay, Judge.

We do not think the dismissal of the affidavit of illegality for insufficiency was a bar to the motion to set aside. A demurrer is only a bar as to the question made by the pleadings. The illegality was dismissed for want of an allegation that the defendant had not appeared and pleaded. This was right enough, and no other affidavit of illegality could stop the fi. fa. on this or any other ground known at the time. But the motion stands on a different footing. The dismissal of the [340]*340illegality on demurrer is no bar to the motion, if it be on a good ground — if it meet the defects in the illegality, and this motion clearly and fully does this. It sets forth want of service; it denies any acknowledgement of service; it denies appearance or pleading, and adds that he has a good defense. The mistake of the judge below, was either in. treating a demurrer as a bar, when the present proceeding contains new facts which make a good case, or in treating' the rule that but one illegality can be filed, as extending also to motions to set aside. The rule as to illegalities turns on the nature of the proceeding. It is an effort to stop the sheriff in the execution of a process, and, very wisely, the rule is rer striated and permits the thing to be done but once, unless it be for causes that either did not exist, or were not known at the date of the first illegality. But a motion made in open court stands on common law rules; and it is a settled rule that a dismissal of a proceeding for informality or insufficiency is no bar to a new proceeding containing allegations making a good case. This court has decided that a bill or other proceeding, to which a demurrer has been sustained and the judgment affirmed by this court may, yet be amended and rendered a good proceeding; and if this be so, it seems clear that the present motion was not barred by the dismissal of the affidavit of illegality.

Judgment reversed.

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Bluebook (online)

54 Ga. 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peters-v-baker-ga-1875.