Atkinson, J.
1. While a sheriff, under the provisions of the Civil Code, § 47"?7, is liable to be attached as for a contempt for neglecting to sell property upon which he has made a levy, it is competent for him, in defense to a rule brought against him for such neglect, to show that the property levied upon was not subject to the execution. Brannon v. Barnes, 111 Ga. 850" court="Ga." date_filed="1900-07-12" href="https://app.midpage.ai/document/brannon-v-barnes-5570264?utm_source=webapp" opinion_id="5570264">111 Ga. 850 (36 S. E. 689). The amendment to the answer of the defendant set forth “that after he levied the fi. fa., as alleged, he found and discovered, before the date of sale as advertised, that the property levied on was not the property of the Plainville Eoller Mill Company, and was not subject to said fi. fa., or the lien of the judgment on which it issued; and therefore he did not attempt to sell said lands.” We think this answer, if not traversed, was sufficient to avoid liability on account of the failure to sell the property which was levied upon. It is contended in the brief of counsel for defendant in error that the amendment did not allege that the property did not belong to the defendant in fi. fa. at the time the judgment was rendered and the fi. fa. was issued. While that identical language was not employed, the answer substantially covers the point suggested by counsel, by charging that the property “was not subject to said fi. fa. or the lien of the judgment.” The further answer of the respondent, “that the said Plainville Eoller Mill Company had no property that respondent could find on which to levy said execution, and therefore respondent could not make the money on said fi. fa. by any diligence,” was sufficient answer as to a failure to collect the money out of any other property. Considering the answer, as amended, in its entirety, it was not subject to be dismissed on account of any of the grounds taken, and it was erroneous to dismiss it, and follow the order of dismissal by an order granting a rule absolute against the defendant.
2. In the brief of counsel for the defendant in error it was contended that the amendment to the answer of the sheriff, though *14lodged with, the clerk, was never allowed by the court, and never became legally a part of the record.' No such point as this appears to have been made or passed upon in the court below. Had the point been there raised, the respondent could have applied at once for an order allowing the amendment. The bill of exceptions recites that on March 7, 1907, during the same term when the original answer was filed, “the said respondent amended his said answer by adding thereto the following supplemental averments: . . that thereupon, on the same date, to wit, on March 7th, 1907, plaintiffs, by their counsel, filed their written traverse to the answer of respondent . . ; that on the call of said ease for trial . . , counsel for plaintiffs insisted on their motion to strike said answer to said rule; and after argument of counsel thereon, the court granted an order sustaining said motion, striking-respondent’s entire answer as insufficient.” In specifying the parts of the record to be sent up to this court, the -additional answer is mentioned. It is evident that the amendment was treated as a part of the pleadings in the case both by counsel and the court, and as a proper part of the record to be sent to this court. It is too late for the defendant in error for the first time, in his brief filed in this court, to raise the point that the amendment was not duty allowed, and therefore can not be considered. See, in this connection, Swatts v. Spence, 68 Ga. 496 (4); Watson v. Equitable Mortgage Co., 132 Ga. 154-163 (63 S.E. 912" court="Ga." date_filed="1909-02-20" href="https://app.midpage.ai/document/watson-v-equitable-mortgage-co-5576638?utm_source=webapp" opinion_id="5576638">63 S. E. 912).
Judgment reversed.
All the Justices concur.