Sharp v. Kennedy

50 Ga. 208 | Ga. | 1873

McCay, Judge.

1. We see no error in this judgment. The entry of the sheriff was a perfect entry. The Code does ’not require, in terms, that it should be signed, though that is undoubtedly proper: Code (Irwin’s) 3592. But the failure to sign is, as we think, amendable. The entry describing the property, and asserting the intention of the officer to seize the land, was complete. The signature is only the supplying of a clerical error. It might be different if there was no entry, (in case of land,) or if the entry was, in itself, wholly wanting in certainty: See case of Wilson vs. Ansley, at this term.

2. We think the affidavit was entirely too indefinite. It was not possible for the plaintiff to take issue on it. Admitting that the question intended to be made, can be made in this way — though this is by no means clear — still, it does not appear, by the affidavit, what it was that plaintiff refused to turn over. Nor does it appear that he was not justified in the refusal. It is stated, it is true, that he had a certain deed as collateral security, but it does not appear what deed. Nor would it be possible for a jury to find on the issue tendered one way or another, as to this deed, because there is not the least indication what the deed was. If parties propose to seek their equitable rights at law, they must set them forth at law as they -would be required to do in equity.

As this affidavit is dismissed for want of certainty, the defendant loses no rights, except that he loses this mode of redress.

Judgment affirmed.