20203 | Ga. Ct. App. | Mar 5, 1930
1. The affidavit of illegality was not verified or signed by the person against whom the execution issued, as required by section 5305 of the Civil Code of 1910. Therefore the affidavit was a nullity, and the court did not err in dismissing it on motion. Burgess v. Calhoun National Bank, 28 Ga. App. 534 (2) (112 S.E. 292" date_filed="1922-05-09" court="Ga. Ct. App." case_name="Clements v. State">112 S. E. 292), and citations.
2. The bill of exceptions recites, that, subsequent to the motion to dismiss the affidavit, “the defendant offered to amend the grounds of the affidavit of illegality by verifying the same under oath, and also to amend the substance of the .illegality,” and that the court refused to allow the amendment. Exception was taken to that judgment. However, the amendment was not set out in the bill of exceptions, nor otherwise duly authenticated by the judge. The amendment, therefore, did not constitute a part of the record, and this court can not consider what purports to be a copy of it sent up by the clerk of the trial court in the transcript of the record. Sibley v. Mutual Life Association, 87 Ga. 738 (2) (13 S.E. 838" date_filed="1891-10-19" court="Ga." case_name="Sibley v. Mutual Reserve Fund Life Ass'n">13 S. E. 838); Barnett v. East Tenn. Ry. Co., 87 Ga. 766 (2) (13 S.E. 904" date_filed="1891-09-05" court="N.C." case_name="Markham v. . Whitehurst">13 S. E. 904); Walker v. Equitable Co., 114 Ga. 862 (7) (40 S.E. 1010" date_filed="1902-03-11" court="Ga." case_name="Walker v. Equitable Mortgage Co.">40 S. E. 1010). Judgment affirmed.