Binder v. Ragsdale

Little, Justice. A number of grounds appear in the affidavit of illegality filed in this ease. But, under the view which we take, it is unnecessary to separately consider the several grounds. If they were so considered, it would seem that those of them which have any merit were adjudicated under the affidavit first filed. This, the second affidavit, was dismissed on motion; and the question to be here considered is whether or not there was any error committed by the court below in such ruling. An execution in favor of Ragsdale, ordinary, for nse, etc., issued on a judgment rendered in the superior court, of DeKalb county, and was levied on certain property of the defendant. On the 17th day of October, 1893, she filed an affidavit of illegality to such execution, on certain grounds named therein. This affidavit was, on the 23d day of August, 1895, by the judgment of the superior court of DeKalb 'county in which the same was pending, dismissed. On the 6th clay of January, 1896, a second (the present) affidavit of illegality was filed to the same execution. In this second affidavit the affiant swears that the grounds set forth therein were unknown to her prior to January 1st, 1896. The record of the case seems to be somewhat confused, but enough appears to enable the court tio adjudicate the question whether this second affidavit was properly dismissed. It will he noted that, with reference to her knowledge of the existence of the grounds set out in the second .affidavit of illegality, the affiant only states that such grounds were unknown to her prior to January 1st, 1896. By the 31st rule of [402] practice in the superior courts, it is prescribed that no second affidavit of illegality shall be received by any sheriff or other officer for causes which existed and were known, or iju the exercise of reasonable diligence might have been Jonown cut the lime of filing live first. If this rule of court is to prevail, it will be readily seen that the affiant does not entitle herself by these allegations to interpose this second affidavit. It may be true that the grounds of the second affidavit were unknown to her at the time of filing the first, and it may also be entirely true that by the exercise of reasonable diligence she might have known of the existence of such grounds when the first affidavit was filed. The judgment against the affiant ■on which the execution issued, was rendered at the February term, 1893, of DeKalb superior court. The first affidavit interposed to that execution bears date October 17th, 1893. Tinder the rule of court above referred to, this affidavit exhausted the right of the defendant to interpose an illegality, except for causes which were unknown to her, and could not in the exercise of reasonable diligence have been known to her at the time of filing the same; and therefore to entitle her to have a second affidavit considered, it.is necessary that the reasons for not including the grounds of the latter in the first shall be fully stated, and it is also necessary that the affiant affirmatively aver that such new grounds were not known to, nor in the exercise of reasonable diligence coxxld have been discovered by her at or before the filing of the first affidavit. Before this rule of court was made, the 16th ■common law rule, established by the judges in convention, declared that no second affidavit of illegality should be received by the sheriff or any other officer. Hotchkiss, 948. In Hurt v. Mason, 2 Kelly, 368, this court left as an open question, to be thereafter decided when made, the proposition whether a second affidavit might not be filed for causes which did not exist at the time of filing the first, but which arose subsequently and which could not have been included in the first affidavit; and it is believed that the present rule [403] of court was made to meet the question raised by that decision. In the case of Leonard v. Collier, 53 Ga. 387, the judgment was defective and the execution thereon had issued illegally; the sheriff having refused to accept a second .affidavit of illegality, an injunction was sought to restrain him from enforcing the execution. It was there ruled that a second affidavit might be filed on the happening of a new ground, or on the discovery of a new fact; or an amendment ■of the first affidavit might be made, if the defendant would ■swear that he did not know of the grounds when the original was filed; or in the case of the second, that he did not know ■of the grounds until after the first affidavit had been disposed of. In the case of Hunter v. Davidson, 59 Ga. 260, where a second affidavit was interposed, this court ruled that the ■ defendant should state fully and specifically the reasons why the grounds therein contained could not have been known to him at the time of filing the first, in order that the court might have seen that the second affidavit was made in good faith and not for the purpose of delay. In the case of Burnett v. Fouche, 77 Ga. 550, where a second affidavit of illegality was filed which failed to allege that its grounds did not exist or were unknown and could not have been known by the exercise of reasonable diligence at the time of filing the first, this court ruled that such second affidavit was properly dismissed on demurrer, citing as authority therefor the rule of court heretofore referred to. In that case the •original affidavit was dismissed on November 12th, 1885/ .and the second affidavit was filed at the succeeding February term of the court. This latter affidavit failing to allege that its grounds did not exist or were unknown or might not have been known in the exercise of reasonable diligence at the time of filing the first, the affiant, without any leave previously «obtained, filed in the court an amendment to the second affidavit, in which he alleged that the facts on which this affidavit rested were unknown to him when he filed his first affidavit and came to his knowledge only a few days [404] previous to the 5th day of.December, 1885. Upon this state of facts, it was expressly ruled that if this amendment - had been offered in time, it failed to comply with the rule requiring of the defendant diligence in ascertaining the facts, and was demurrable. It seems, therefore, that by the ■ rule of court now of force the 16th common lav/ rule has-been enlarged by adding certain provisions which would authorize the interposition of a second affidavit of illegality,, hut under the law as it now stands, in order that a second affidavit may be maintained, it must be affirmatively shown that the grounds upon which it is based were not known to-the affiant at the time of filing the first affidavit, nor, in the-exercise of reasonable diligence, could have been known at • such time, and it is incumbent upon the affiant to allege-how and wherein he has exercised diligence, and to otherwise state fully and specifically the reasons why the grounds therein contained could not have been known to him at the time of filing the first affidavit. See 59 Ga. 260, and other' authorities cited supra. These are the conditions upon which a second affidavit may be interposed, and in the absence of a compliance therewith, no sheriff or other officer is invested with authority to- receive it. In the case under consideration the averment is that the grounds contained in the second affidavit were not known to affiant at a given date. Such averment, without more, fails to meet the rule. The affidavit was therefore defective and properly dismissed. Judgment affirmed. All the Justices concurring.