9958 | Ga. Ct. App. | Jun 12, 1919
1: While • the statute. (Civil Code of 1910, § 5150) applicable to bail-trover requires that when “any person who is about to commence an action for the recovery of personal property shall require bail, such person, his agent, or attorney shall make affidavit that the property is in the possession, custody, or control of the defendant, and that he has reason to apprehend that the said’ personal property has been or will be eloigned or moved away, or will not be forthcoming to answer judgment, execution or decree that shall be made in the case,” etc., such an affidavit does not render the bond void because not sworn to postively but to the best of the attorney’s “knowledge and belief,” since there is no statute which expressly makes the proceeding void for such an irregularity. “All-affidavits that are the foiindation of. legal proceedings, and all counter-affidavits shall be amendable to the same extent as ordinary declarations, and only with the restrictions, limitations, and consequences now obtaining in the case of ordinary declarations and pleas.” Civil Code, § 5706. See also Penn v. McGhee, 6 Ga. App. 631 (65 S.E. 686" date_filed="1909-07-31" court="Ga. Ct. App." case_name="Penn & Watson v. McGhee">65 S. E. 686); Dolvin v. Hicks, 4 Ga. App. 653 (62 S.E. 95" date_filed="1908-07-31" court="Ga. Ct. App." case_name="Brown & Bigelow v. Parian Paint Co.">62 S. E. 95); Busby v. Elliott, 22 Ga. App. 391 (95 S.E. 1014" date_filed="1918-05-17" court="Ga. Ct. App." case_name="Busby & Son v. Elliott">95 S. E. 1014); Levins. American Furniture Co., 133 Ga. 670 (66 S.E. 888" date_filed="1909-12-24" court="Ga." case_name="Levin v. American Furniture Co.">66 S. E. 888). The case of Krutina v. Culpepper, 75 Ga. 602, and cases there cited, are not in conflict with anything here ruled, since those eases were decided prior to the enactment of the statute from which section 5706, supra, relative to amendment of affidavits, is taken.
(a) ,Therefore the judgment in the main case against both the principal and the surety cured this amendable defect; and the surety on an eventual condemnation-money bond in an action of tro,ver will not, after judgment, be heard to raise by affidavit of illegality any question which could have been raised by his principal before judgment. Waldrop v. Wolff, 114 Ga. 620 (40 S.E. 830" date_filed="1902-02-04" court="Ga." case_name="Waldrop v. Wolff">40 S. E. 830); Middletons. Johnson, 19 Ga. App. 478 (3), (91 S.E. 785" date_filed="1917-03-13" court="Ga. Ct. App." case_name="Baker v. State">91 S. E. 785).
2. The trial judge erred in directing a verdict sustaining the affidavit of illegality.
Judgment reversed.