Thigpen v. Vidalia Chemical Co.

156 S.E. 635, 42 Ga. App. 563, 1931 Ga. App. LEXIS 55

Opinion

Bell, J.

1. The copy of the mortgage attached to the foreclosure affidavit was sufficiently verified to meet the requirements of the Civil Code, § 32-86, by the statement contained in the affidavit that the defendant was indebted to the plaintiff “on a certain mortgage a copy of which is attached hereto and made a part of the affidavit.” Bainbridge Stock Co. v. Krause-McFarlin Co., 8 Ga. App. 220 (2) (68 S. E. 1013) ; Hardy v. Luke, 18 Ga. App. 423 (89 S. E. 540).

2. Moreover, in Bosworth v. Matthews, 74 Ga. 822, the requirement as to annexing to the affidavit the mortgage or a copy thereof was held to be a mere direction to the clerk of the court, a failure to observe which should not work a dismissal of the proceedings. In deciding the ease of Hillis v. Comer, 14 Ga. App. 30 (79 S. E. 930), this court apparently overlooked the decision in the case of Bosworth v. Matthews.

3. Applying the above rulings, the court did not err in overruling the motion to dismiss the mortgage foreclosure and levy upon the ground that the affidavit'of foreclosure did not have attached thereto a verified copy of the mortgage sought to be foreclosed, a copy of which was attached to, and referred to in, the affidavit.

4. Upon conflicting evidence the jury were authorized to find against the plea that the mortgage was prematurely foreclosed.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.