(DOWNLOAD) "Mclendon v. Lemon" by Court of Appeals of Georgia * Book PDF Kindle ePub Free
eBook details
- Title: Mclendon v. Lemon
- Author : Court of Appeals of Georgia
- Release Date : January 08, 1949
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 49 KB
Description
On November 20, 1948, a mortgage fi. fa. on personal property, returnable ""on the third Monday in January, next,"" was issued from the City Court of Decatur in favor of E. W. Lemon, the holder of a chattel mortgage, against W. T. McLendon, and was levied on the first day of January, 1949, against certain personal property therein described as being the mortgaged property. The defendant in fi. fa. filed a counter-affidavit and bond, in which he alleged that the fi. fa. was proceeding illegally ""for the following reasons: This deponent, defendant in said fi. fa., does not owe the plaintiff in fi. fa any sum whatever, and there is no indebtedness now due by defendant in fi. fa. to the plaintiff in fi. fa."" This counter-affidavit and bond together with the mortgage fi. fa. were returned to the clerk's office and filed on January 8, 1949, which was 9 days before the opening of the January term of the court. To this affidavit of illegality the plaintiff in fi. fa. filed a general demurrer on February 3, 1949, and on the same day filed a motion to dismiss the affidavit of illegality based on the same grounds as his demurrer. A rule nisi was issued commanding the defendant in fi. fa. to show cause on February 9, 1949, why the motion to dismiss the affidavit of illegality should not be granted, and it appears by affidavit annexed to the said rule that service of the same was made by the attorney for the plaintiff by leaving a copy of the rule at the office of the attorney for the defendant. On February 25 the Judge of the City Court of Decatur entered an order sustaining the motion to dismiss and commanding the Sheriff of DeKalb County to proceed with the sale of the property levied upon. On the same day the defendant in fi. fa. sought to amend his affidavit of illegality by setting up his defense in detail, but the court disallowed the amendment on the ground that it did not comply with the requirements of the Code, § 39-1005. To this ruling, disallowing the amendment, the defendant filed exceptions pendente lite. The case comes to this court upon a bill of exceptions assigning error on the order of the court disallowing the amendment to the affidavit of illegality and to the order dismissing the affidavit. 1. The defendant contends that the court erred in deciding this case at the January term of the City Court of Decatur. He bases this contention on the fact that the proceeding was returned to the clerk of the court within a period of less than 20 days before the January term and was docketed to the March term of the court, and he relies on the provisions of the Code, § 81-111. We do not think that this Code section is applicable to the facts of this case; and neither do we think that Penn Mutual Life Ins. Co. v. Troup, 177 Ga. 456 (6a), 457 (170 S.E. 359), Atlantic Coast Line R. Co. v. Georgia Sweet Potato Growers Assn., 171 Ga. 30, 31 (154 S.E. 698), and the other cases cited and relied on by the plaintiff in error, are in point.