60 Ga. 296 | Ga. | 1878
This is a bill of exceptions alleging error in the superior court in overruling certain grounds taken in an affidavit of illegality, and in retaining the affidavit in respect to another ground. Both parties except to the judgment. The County of Lee excepts because the court retained the illegality on the first ground taken therein; and it may be well to dispose of that first.
The Code declares, speaking of the fi. fas. issued for money collected for counties, that “ if such execution shall issue for too much, or if defendant denies on oath owing any part thereof, he may, by filing an affidavit of illegality,
This affidavit follows substantially, if not in very letter, the words of the Code, and it does not appear why this party should not make an issue, and have it tried as the Code seems to provide. There was no error, therefore, in retaining the affidavit on this ground, that the issue directed by the statute might bo formed and tried.
On the other grounds, the affidavit was dismissed, a demurrer to them having been sustained.
It makes no difference. It is a mere ministerial act.. A, judge may confess judgment in his own court. See Code, §3601; 11 Ga., 459.
So a clerk, though attorney of record, may issue execution. 55 Ga., 282. So a magistrate, though son of the plaintiff, may issue a distress warrant, the act being merely ministerial. 55 Ga., 607.
Besides, the order was not illegal. Seventy-five per cent was for bridges, which needed no recommendation, and twenty per. cent, for the poor and poor school fund one year, and the next 12^- for the poor. The case, in respect to this point, is covered by the case of Arnett vs. Griffin, from Decatur, not yet reported, decided at the present term. See that case and cases there cited.
Judgment affirmed.