111 Ga. 28 | Ga. | 1900
An execution in favor of the National Building and Loan Association of Montgomery, Ala., against C. E. and P. H. Williams, was levied upon property belonging to P. H. Williams, who thereupon tendered to McArthur, the sheriff of Sumter county, an affidavit of illegality, which the officer refused to accept. Williams then sued out a petition for mandamus to compel the sheriff to accept the affidavit; the court refused to make the mandamus absolute, and Williams excepted. One ground of this affidavit was as follows: “Because said execution was signed, or purports to be signed, by J. H. Allen, clerk of superior court of Sumter county, when in truth and in fact the same was not signed by said J. H. Allen, clerk, and it was not signed by any one who had the legal authority or right to sign the same as- it is for him. Neither was it signed in his presence.” In the view we take of the case, it is unnecessary to set forth the other grounds of the affidavit.
As above stated, we deem it unnecessary to deal with the other grounds of the affidavit of illegality, and as to their merits we express no opinion. It is sufficient to our present purpose to show that the judge erred in refusing to make the mandamus absolute, for the reason that the affidavit of illegality contained at least one good ground for suspending proceedings under the execution. After he shall have done so, the merits of all the grounds of the illegality can be passed on when the case arising thereon is tried.
Judgment reversed.