Brewer v. Settle

Hill, J. 1. By agreement of counsel an order was signed, that the presiding judge hear and determine the legal questions involved in this illegality case in vacation, with the right to file exceptions to his decision; and that all questions of fact, if any, should be referred to a jury. At the hearing in vacation the judge allowed counsel for the plaintiff in the execution to amend it by substituting the name of the present judge of the superior court of that judicial circuit for that of a former judge of that court whose name bore test on the execution as the judge then in office. Exception was taken to the allowance of this amendment, on the grounds that it could not be allowed in vacation, and that the clerk of the superior court was the only person who could so amend the execution (citing Civil Code, § 5699, and Smith v. Bell, 107 Ga. 800, 803, 33 S. E. 684, 73 Am. St. R. 151). Held, that the authority to hear the legal questions involved in the case in vacation included the authority to hear and decide any legal question incident thereto, such as an amendment to the execution in order to make it bear test in the name of the judge in office at the date of the issuance of the execution; and the allowance of the amendment was not illegal because the judge, instead of the clerk of the superior court, allowed and made the amendment. See Drawdy v. Littlefield, 75 Ga. 215 (2). 2. Affidavit of illegality is not an available remedy to test the question whether a judgment of the superior court follows the verdict. Dahlonega Gold Mining Co. v. Purdy, 68 Ga. 296. See Settle v. Brewer, 141 Ga. 131 (80 S. E. 657); Cheney v. Selman, 71 Ga. 384. 3. The trial judge did .not err in dismissing the affidavit of illegality, on . oral motion, in vacation. Judgment affirmed. All the Justices concur.