Upchurch v. Nichols

Court of Appeals of Georgia

Upchurch v. Nichols

83 S.E. 273, 15 Ga. App. 359, 1914 Ga. App. LEXIS 112

CourtCourt of Appeals of Georgia

DecidedNovember 4, 1914

Docket5659

StatusPublished

Cited by5 cases

This text of 83 S.E. 273 (Upchurch v. Nichols) 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

Upchurch v. Nichols, 83 S.E. 273, 15 Ga. App. 359, 1914 Ga. App. LEXIS 112 (Ga. Ct. App. 1914).

Pincite

Opinion

Wade, J.

1. An allegation in an affidavit for the foreclosure of a mortgage before maturity of the debt, that the “defendants” are about to remove the mortgaged property beyond the limits of the county, is not a compliance with section 3287 of the Civil Code, where the affidavit does not show that the defendants are purchasers of the mortgaged property. No other ground for foreclosure being alleged in the affidavit in this case, the court did not err in sustaining the motion to dismiss the levy.

2. The bill of exceptions recites that “the plaintiff in fi. fa. moved the court to allow an amendment to its affidavit of foreclosure, and proposed the following amendment: by adding the following words after the word ‘county’ in said affidavit: ‘The defendants are causing the property to be removed beyond the limits of the State.’ The court refused to allow the said amendment and overruled the same; to which ruling the plaintiff excepted,” etc. Nothing further as to the proposed amendment is disclosed by the hill of exceptions itself; and this court can not assume that the amendment was verified, as the law requires, by an affidavit as to the truth of the ground for foreclosure stated in the amendment; and therefore can not assume that the plaintiff was entitled to have the amendment allowed in the form in which it was presented. This should have been made to appear affirmatively, in order to show error in the ruling complained of. So far as appears from the bill of exceptions, the refusal to allow the amendment may have been based on failure of the plaintiff to comply with the requirement of the law as to verification. See Benson v. Marietta Fertilizer Co., 139 Ga. 691 (72 S. E. 34) ; Early v. Hampton, ante, 98, 99.

[360]*360Decided November 4, 1914.

Levy and claim; from city court of Thomasville—Judge W. H. [•Tammond. March 4, 1914.

C. P. Hansell, J. H. Merrill, Fondren Mitchell, for plaintiff. Roscoe Luke, O. F. Hay, Louis Moore, for defendant.

(a) The Court of Appeals can not look beyond the bill of exceptions to ascertain the contents of a proposed amendment which the court below refused to allow, and which, therefore, did not become a part of the record of the case. It can not properly be brought before this court as a part of the clerk’s transcript of the record, though marked “filed” by him. Schaeffer v. Central of Georgia Ry. Co., 6 Ga. App. 282; MeGarry v. Seiz, 129 Ga. 296 (58 S. E. 856), and citations.'

Judgment affirmed.

Roan, J., absent.

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Wade, J.

1. An allegation in an affidavit for the foreclosure of a mortgage before maturity of the debt, that the “defendants” are about to remove the mortgaged property beyond the limits of the county, is not a compliance with section 3287 of the Civil Code, where the affidavit does not show that the defendants are purchasers of the mortgaged property. No other ground for foreclosure being alleged in the affidavit in this case, the court did not err in sustaining the motion to dismiss the levy.

2. The bill of exceptions recites that “the plaintiff in fi. fa. moved the court to allow an amendment to its affidavit of foreclosure, and proposed the following amendment: by adding the following words after the word ‘county’ in said affidavit: ‘The defendants are causing the property to be removed beyond the limits of the State.’ The court refused to allow the said amendment and overruled the same; to which ruling the plaintiff excepted,” etc. Nothing further as to the proposed amendment is disclosed by the hill of exceptions itself; and this court can not assume that the amendment was verified, as the law requires, by an affidavit as to the truth of the ground for foreclosure stated in the amendment; and therefore can not assume that the plaintiff was entitled to have the amendment allowed in the form in which it was presented. This should have been made to appear affirmatively, in order to show error in the ruling complained of. So far as appears from the bill of exceptions, the refusal to allow the amendment may have been based on failure of the plaintiff to comply with the requirement of the law as to verification. See Benson v. Marietta Fertilizer Co., 139 Ga. 691 (72 S. E. 34) ; Early v. Hampton, ante, 98, 99.

[360]*360Decided November 4, 1914.

Levy and claim; from city court of Thomasville—Judge W. H. [•Tammond. March 4, 1914.

C. P. Hansell, J. H. Merrill, Fondren Mitchell, for plaintiff. Roscoe Luke, O. F. Hay, Louis Moore, for defendant.

(a) The Court of Appeals can not look beyond the bill of exceptions to ascertain the contents of a proposed amendment which the court below refused to allow, and which, therefore, did not become a part of the record of the case. It can not properly be brought before this court as a part of the clerk’s transcript of the record, though marked “filed” by him. Schaeffer v. Central of Georgia Ry. Co., 6 Ga. App. 282; MeGarry v. Seiz, 129 Ga. 296 (58 S. E. 856), and citations.'

Judgment affirmed.

Roan, J., absent.

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83 S.E. 273, 15 Ga. App. 359, 1914 Ga. App. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/upchurch-v-nichols-gactapp-1914.

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