Story v. Flournoy, McGehee & Co.

Warner, Chief Justice. This was a proceeding instituted by the plaintiffs as factors and commission merchants, against the defendants for the foreclosure of a crop lien for money advanced by the plaintiffs to make it, under the provisions of the 1978 th section of the Code. The defendant, J. A. Story, filed a counter-affidavit alleging that the amount claimed by plaintiffs was not due, and that the plaintiffs having accepted security for the money advanced, it was an abandonment of their lien. The papers were returned to the superior court, and on the trial of the issue thus formed between the parties, the jury found a verdict for the plaintiffs. The defendants made a motion for a new trial on the several grounds set forth in the record, which was overruled by the court, and defendants excepted. 1. There was no error in the chai’ge of the court that the taking personal security on the note, did not operate as a waiver of the lien. 2. It appears from the record, that after the argument of the case had been concluded, the defendant, J. A. Story, offered to amend the issue which had been made by his former counter-affidavit, by offering another affidavit (having given plaintiffs’ counsel notice before the conclusion of the argument that he would do so,) to the effect, that the consideration of .the note, the foundation of the plaintiffs’ action, was not for money or supplies furnished to enable him to make a crop, but was for a note which one Toliver held against him, which [59] was due in 1873. The court refused to allow the issue to be amended by the additional affidavit thus offered, and this'is one of the errors assigned in the motion for the new trial. By the 1991st section of the Code, it is declared that if the defendant in such lien execution contests the amount, or justice of the claim, or the existence of such lien, he may file his affidavit of the fact, setting forth the ground of such denial, which affidavit shall form an issue to be returned to the court and tried as other causes. The defendant does not allege in his second affidavit which be offered to file, that the facts stated therein were not known to him when he filed his first counter-affidavit and made up the issue between him and the plaintiffs. Although this is not an affidavit of illegality, yet, the same rule in principle applicable to a second affidavit of illegality, would seem to be applicable to the defendant’s second affidavit in this ease. But it is said the defendant lias never had his day in court, never had an opportunity to plead to the plaintiffs’-claim until the execution was levied on bis property. The reply is, that the statute points out the mode and manner in which he shall plead and make his defense by filing his counter-affidavit, and that shall form an issue between him and the plaintiff to be tried as other causes. What issue is to be tried as other causes? Most obviously,-¿Ae issue made by the defendant’s counter-affidavit returned into court, and not an issue which he may thereafter make by filing another affidavit. Besides, to allow a defendant in this class of cases, to file a second affidavit and form a neto issue, without alleging that the facts set forth in the second affidavit were not known to him when he made his first counter-affidavit, would be to defeat the object of the statute, which was intended to give to plaintiffs a summary remedy to collect this class of debts. If the defendant shall be allowed at the trial of the issue formed on his first counter-affidavit, to surprise the plaintiffs by making a new issue by filing a second affidavit containing facts well known to him when he filed his first affidavit, and thereby force the plaintiffs to a continuance of [60] the case to meet that new issue, one of the main objects of the statute, will be defeated. 3. Besides, the practical effect of the motion made by the defendant was to amend his first counter-affidavit, which was the foundation of his defense, and the proceeding which was returned into court for trial. The 3504th section of the Code declares that an affidavit which is the foundation of a legal proceeding cannot be amended, except expressly provided by law. The first counter-affidavit made by the defendant was the foundation of the legal proceeding which was returned into court for trial, and there is no law of which we are advised that provides for th.e amendment of that affidavit after it has been returned into court, either by the filing of a new affidavit or otherwise, so as to alter or change the issue made by it. There was no error in the refusal of the court to allow the amendment offered. Let the judgment of the court below be affirmed. Bleckley, Judge, concurred, but furnished no written opinion. .