Shecut v. Trubee

26 S.E. 60, 99 Ga. 637

• Court: Supreme Court of Georgia
• Decided: November 9, 1896
• Status: Published

Opinion

Simmons, C. J.

1. An affidavit cannot be made by proxy, but the affiant must do his own swearing. Therefore, what purported to be a claim affidavit with the name of the claimant subscribed thereto, was properly treated as no affidavit at all, it appearing that his name was signed by another in his absence and without his knowledge, and that he never had in fact deposed to the contents of the affidavit.

November 9, 1896. Argued at the last term.

Levy and claim. Before Judge Hart. Morgan superior court. September term, 1895.

An execution against Durdin was levied on land to which, a claim was interposed in forma pauperis in the name of Shecut, who filed a traverse of the sheriff’s entry of levy, as to the return therein that defendant in fi. fa. was in possession of the land. Issue was joined upon the traverse, and upon the trial it appeared from the testimony of defendant in fi. fa. “that she signed the affidavit for her nephew at his request; that he was not present when it was signed.” Claimant’s counsel thereupon moved the court-“to allow him to amend the affidavit by letting the claim ant, who was then in court, swear to and sign the affidavit.” The motion was overruled, and the claim and traverse were dismissed. Claimant excepted.

J. H. Holland, for plaintiff in error, cited Acts 1889, p. 110; Acts 1887, p. 59. Foster & Butler, contra, cited Code, §§3Y33, 3504; 83 Ga. 636, 639; 63 Ga. 496; 91 Ga. 130.

2. In the present case there was no contention that the person who actually signed the claimant’s name to the affidavit was endeavoring to act as his agent in filing the claim, or attempting to make the claim affidavit as such agent.

Judfpncnt affirmed.