Simmons v. Harwell

Court of Appeals of Georgia

Simmons v. Harwell

113 S.E.2d 146, 101 Ga. App. 117, 1960 Ga. App. LEXIS 806

CourtCourt of Appeals of Georgia

DecidedJanuary 26, 1960

Docket37914

StatusPublished

This text of 113 S.E.2d 146 (Simmons v. Harwell) 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

Simmons v. Harwell, 113 S.E.2d 146, 101 Ga. App. 117, 1960 Ga. App. LEXIS 806 (Ga. Ct. App. 1960).

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Opinion

Gardner, Presiding Judge.

Neither of the two affidavits of illegality was good. The first was defective because it merely alleges “there has been no judgment against [movant] in favor of said plaintiff in execution and no legal basis for the issuance of said execution.” The second affidavit of illegality is defective because it alleges “that there is now pending in the superior [120]*120court in said state and county a suit as above styled against J. H. Harwell individually, alleging that he, the deponent herein, is indebted to the said Louise Simmons, and that the said J. H. Harwell has not had his day in court and that there is no legal judgment against him.” Where an affidavit of illegality contains nothing more than mere conclusions and generalities it is insufficient to prevent a dismissal by motion to strike. See Edenfield v. State of Georgia, 80 Ga. App. 716 (57 S. E. 2d 288). Since we are holding that the affidavits of illegality are not good, it follows that this court is not called upon to pass on any other points involved in the record before us.

Judgment reversed.

Townsend, and Carlisle, JJ., concur.

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Gardner, Presiding Judge.

Neither of the two affidavits of illegality was good. The first was defective because it merely alleges “there has been no judgment against [movant] in favor of said plaintiff in execution and no legal basis for the issuance of said execution.” The second affidavit of illegality is defective because it alleges “that there is now pending in the superior [120]*120court in said state and county a suit as above styled against J. H. Harwell individually, alleging that he, the deponent herein, is indebted to the said Louise Simmons, and that the said J. H. Harwell has not had his day in court and that there is no legal judgment against him.” Where an affidavit of illegality contains nothing more than mere conclusions and generalities it is insufficient to prevent a dismissal by motion to strike. See Edenfield v. State of Georgia, 80 Ga. App. 716 (57 S. E. 2d 288). Since we are holding that the affidavits of illegality are not good, it follows that this court is not called upon to pass on any other points involved in the record before us.

Judgment reversed.

Townsend, and Carlisle, JJ., concur.

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Bluebook (online)

113 S.E.2d 146, 101 Ga. App. 117, 1960 Ga. App. LEXIS 806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-harwell-gactapp-1960.

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