22 Ga. App. 451 | Ga. Ct. App. | 1918
J. J. Griffin brought suit on a replevy bond against W. M. Benedict, as principal, and D. W. Wilson and E. W. Fowler, as securities thereon. The action was made returnable to the March term, 1917, of Newton superior court; and at the appearance term the defendants filed their plea and answer. When the case was called for trial at the July term, 1917, the plaintiff’s counsel abandoned their common-law action and stated to the court that they had a separate and- independent motion to make,, which they thought would dispose of the suit and obviate the necessity of a trial. The motion, which was in writing, states that the movant shows: “that on the 16th day of October, 1916, movant foreclosed a laborer’s lien upon cotton crop of W. M. Benedict, returnable to the January term, 1917, of the superior court of said county, for the sum of $190, and that the same was duly levied upon certain
It will be observed from this brief statement of facts that - a levy had been made, the property replevied, and a replevy bond given, but no counter-affidavit was made and filed as required by paragraph 6 of section 3366 of the Civil Code (1910).- Confronted with' this .state of facts, the trial court properly entered up judgment on the replevy bond, against the principal debtor and his sureties, in the same manner as in appeal cases. Plaintiff in error contends that by offering to file a counter-affidavit when the case was called for trial, he sufficiently met the requirements of the Civil Code, § 3366, (6). In refusing the proffered affidavit the trial judge stated that it came too late; and in so ruling we think he was entirely correct. In the case, of Moultrie Lumber Co. v. Jenkins, 121 Ga. 721 (49 S. E. 678), the defendant had made a counter-affidavit and filed it with the levying officer, but it was ruled on the trial that the affidavit was void because sworn to before the defendant’s attorney. This was tantamount to holding that no counter-affidavit had been filed. The defendant then and there offered to amend by swearing to the affidavit before a competent officer. The Supreme Court held that the defendant did not have the right to amend his affidavit, and Justice Lamar, delivering the opinion for the court, said: “But until there is such an affidavit there is no case, nothing to be returned to court, no pleadings to be amended, and no issue to be tried. If, therefore, the
The only-other contention of the plaintiff in error is that the court erred in not requiring the plaintiff to make out his case by proper evidence, and in refusing to submit 'the case to a jury, -as the bond was a conditional contract. - The answer to this contention is found in the Giddens and Moultrie Lumber Co. cases, supra, to- wit: no counter-affidavit having been filed at the proper time, in order to arrest the proceedings, there was no “issue to be tried,” and consequently nothing to submit to a jury. In the Giddens ease the court entered up judgment upon the bond exactly as the court did in the ease now under review.
Judgment affirmed.