Fuller & Oglesby v. Vining

Lumpkin, Justice. The fi. fa. referred to in the head-note was, in June 1888, levied upon certain property of D. M. Yining, the plaintiff’s attorney having placed in the sheriff’s hands an affidavit to the effect that the property was subject, although covered by a homestead. Yining hied a counter-affidavit to the effect that the property had been regularly and legally set apart as a homestead, and denying that it was subject to This fi. fa. The final verdict in this case was against the counter-affidavit, and a judgment was rendered ordering the fi. fa. to proceed. The sameji.fa. was afterwards levied upon property of D. M. Yining, and he filed au affidavit of illegality, alleging that he was not personally served with a copy of the scire facias to revive the dormant judgment. He was served with a copy thereof by leaving the same at his residence. It is unnecessary to decide whether the service actually made was legally sufficient or not,’because it was res adjudicata between these parties that the fi. fa. was a valid one against D. M. Yining. This ruling disposes of the case, but we may remark that the counter-affidavit originally filed by this defendant was substantially an affidavit of illegality, and so regarding it, rule 31 of the superior courts would be applicable. That rule provides that a second affidavit of illegality cannot be filed for “causes which existed and were known, or in the exercise of reasonable diligence might have been known, at the time of filing the first.”- If the ground 602 of the second, illegality was true in fact, it must have been known'to defendant when he filed the first. Manifestly, therefore, the judgment of the court below in sustaining this last affidavit of illegality was wrong. Judgment reversed.