Lenoard v. Collier

McCay, Judge. 1. The original declaration and the verdict by the jury in the common law suit are perfectly regular. The declaration is against the two Px-yors, administrators of Pettee, and against Colliei’, as security, and the cause of action set forth shows that it was a suit against the administx-ators, as such. Under our Code, the administrators of a deceased co-promissor may be joined with the survivor in a suit on the promise : Code, section 3348. So the verdict is regular. It is against the defendants. It is not usual in this state to specify in the verdict of the jury the character of the defendants, unless there be some issue on that character. There was here no plea, and the verdict is a finding of the jui-y in favor of the plaintiff on all the allegations of the declaration, and a judgment may, on such a verdict, be entered up according to the allegations. Without doubt the judgment is defective. It fails to charge the Pryors, as administrators, and to direct that the money shall be made de bonis testatoris, and it does not describe Collier as security. In both these respects, it fails to comply with the law: Code, section 3573. But is the judgment for this reason void ? We think not. A judgment upon a verdict is a mere clerical act of the plaintiff’s attorney, and if it fails to conform in any way to tlie verdict, it 'is amendable. It is the every day’s practice of the courts to permit this, and it is expx-essly and in terms allowed, even after execution issued, by the Code, section 3494. Nay, it is the every day practice to enter up a judgment nune pro tune even where there is no judgment. The test as to what defects make a px-oceeding void, and what are mere irregularities, is whether the defect is amendable. [391] It is therefore clear to us that this judgment is not void but only irregular, and capable of being amended.' 2. The defect — and it is a defect — both in the judgment and execution, is the subject of an affidavit of illegality. The execution has issued illegally if it has no proper, regular judgment to depend upon, and may be stopped by affidavit of illegalitj’-, or the judgment may be set aside if not amended by motion in open court: 19 Georgia, 579; 26 Ibid., 162; 39 Ibid., 565; and so the defendant seems, to have thought, as his bill is founded on the fact that the sheriff refused to receive his affidavit and stop the proceedings. Was the sheriff right in this ? Under the allegations in the bill, as well as by the statements of the answer, it appears that this is the second affidavit that the defendant has filed to the execution. 3. The thirty-first rule of court “provides that no second affidavit of illegality shall be received by the sheriff or other officer,” and this is a salutary rule. If a defendant may stop a levy by an affidavit, he ought to take all the grounds that exist. He cannot bring up the various objections there may be to an execution in different installments. It would creeat interminable delays, and besides it is a rule in all legal proceedings that if a party takes steps after an irregularity of his opponent, he is ordinarily held to waive it. The sheriff -was not in the wrong for refusing to receive the affidavit. To do so he would' have violated a rule of court. Had this bill stated that this defect in the proceedings had not, been discovered by him when his first affidavit was filed, we incline to think the sheriff ought to have received the affidavit. The rule of court can .fairly be taken to mean that a second affidavit may be filed on ,the happening of a new ground or on the discovery of a new fact. Even an amendment of an affidavit may be made to insert new grounds, if the defendant will swear that he did not know of the grounds when the original was filed, and the rule of court is perhaps fairly to have that qualification, or a qualification that he did not know of the ground until after the first [392] affidavit was disposed of. Perhaps in this very case he did know of them, and he is resorting to a bill in equity to get rid of the consequences of his own negligence. If a man, knowing of several defects in a judgment, attacks it upon one ground by an affidavit, he cannot, when his objection is met, attack it on another by a new affidavit, and this is a sound rule of public policy. As there was no final judgment on the first illegality, the defendant is not estopped from moving an amendment of the judgment or moving the court to set it aside and forcing the plaintiff to amend. He makes no excuse in the bill why he has not done this. If he did not know of the defect, he can now file his illegality — If he did, he presents no claims for interference by equity. His trouble is his own fault. He owes the debt; he put his name to the paper, and the plaintiff has a right to collect the money out of him alone. For these.reasons we think the complainant was-not entitled to an injunction on his own showing. His •remedy was at law by affidavit or by motion. If he cannot swear to the facts necessary to make an affidavit which the sheriff ought to receive, he may move in open court. But the same reason which makes it improper for him to get a second stay by affidavit makes it improper for equity to interfere. It is his own fault, if he knew the defect, and did not insert it in his first affidavit. We recognize that this judgment and execution are wrong. But they may be amended. The plaintiff may amend, or Collier may himself pay the money and move to amend, so as to use the fi. fa. to reimburse himself. Judgment reversed.