Hogan v. Scott

Hill, J. P. brought an action of trover against S., to recover certain property, and gave H. as surety on the bond given in order to take possession of the property, the defendant having failed to replevy it. P. recovered judgment against S., who made a motion for a new trial, which was granted, and thereafter judgment was rendered against P. as principal and H. as surety. A fi. fa. was issued on this judgment and levied upon" the property of H., the surety, who filed an affidavit of illegality upon various grounds: On oral demurrer the court struck all except one of the grounds of illegality, and disallowed an offered amendment to that ground. H. excepted pendente lite, and the case proceeded to trial on the issue raised by the paragraph not stricken, which, in substance, was whether or not the attorney for P. (the original plaintiff) had really abandoned the case before the motion for a new trial was served upon him, and whether he had notified the attor [127] ney of S. (the defendant) of his abandonment of the case before the service of the motion for a new trial. The jury rendered a verdict in favor of the plaintiff in fl. fa., finding against the affidavit of' illegality. H. (the surety who filed the affidavit of illegality) excepted, and assigned error on the rulings of the court in striking all of the paragraphs of the affidavit of illegality except one, and in refusing to allow an amendment to that one, and “in permitting said verdict to be rendered and said judgment to be entered.” Held, that the surety, not being a party to the trover suit, could not maintain the grounds of illegality stricken, which attacked the validity of the judgment rendered against his principal; and there was no error in striking them, and in disallowing the amendment, which sought to set up a like defense. Jackson v. Guilmartin, 61 Ga. 544; and see Thomas v. Price, 88 Ga. 533 (15 S. E. 11). The assignment of error on the verdict and judgment raises the contention only that they are erroneous because of the alleged errors in the antecedent rulings excepted to. November 16, 1916. Affidavit of illegality of execution. Before Judge Pendleton. Fulton superior court. September 17, 1915. Gober & Jaclcson and 8. 0. Crane, for plaintiff in error. Joseph W. & John D. Humphries, contra. Judgment affirmed. All the Justices concur.