Moultrie Lumber Co. v. Jenkins

Lamar, J. (After stating the facts.) Where a laborer’s lien has been. foreclosed under the Civil Code, § 2816, the execution issued thereon operates -as final process. The office of the counter-affidavit is to convert this final process into ‘mesne process and raise an issue which must there be passed upon by the proper tribunal. But until there is such an affidavit there is no case, nothing to be returned to a court, no pleading to be amended, and no issue to be tried. If, therefore, the counter-affidavit was void, the defendant was not in a position, on this hearing, to have a ruling as to the validity of the foreclosure or levy. The Civil Code, § 4417, expressly declares that “attorneys can not take affidavits required of their clients, unless specially permitted by law.” The word “take” in this section was construed,in Wilkowski v. Halle, 37 Ga. 681, to mean that he can not administer an oath to his client. The affidavit, being one which counsel was prohibited from certifying, was void. It should not have been received by the levying officer. • It was ineffective to arrest the levy or to convert the final process into mesne process. There was nothing in court by which to amend. The case was properly dismissed. Judgment affirmed. All the Justices concur.