Haynes v. Arnold

Beck, P. J. 1. Even if tender was properly alleged in this case, the evidence was conflicting, and the court was authorized to find against the petitioner. 2. The court was also authorized to And against the plaintiff on his contention that the property sold at sheriff’s sale was not offered and sold before the court-house door between the legal hours of sale on the day upon which it was advertised to be sold, the evidence upon this question being conflicting. 3. In the brief of counsel for the plaintiff it is contended that the judgment upon which the fi. fa. levied upon the property was based was illegal and void, because the defendant in judgment (petitioner) had never been served and had his day in court; but no allegation that the defendant in judgment had not been duly served appears in the petition. There is a statement in an affidavit submitted by petitioner that he had not been served. This is not sufficient; the pleadings should have shown that he had never been served, and the sheriff should have been made a party, as one having an interest and not merely as a “ nominal party.” And moreover, sufficient excuse should have been alleged for not raising this question before', by filing an affidavit of illegality and traversing the return of the sheriff in the proper court. 4. The levy of the fi. fa. was made on May 14, 1921. The sale was on the first Tuesday in June. The contention that the advertisement for once a week for four weeks between the date of the levy and the date of the sale could not have been had is without merit, in view of the ruling in the case of Carter v. Copeland, 147 Ga. 417 (94 S. E. 225). 5. The defendant in fi. fa. (plaintiff in the equitable petition), was in possession of the property at the time it was levied upon. The notice of the levy was given to him, and as to form it substantially complied with the statute. Judgment affirmed. All the Justices concur, except Atlcmson and Hines, JJ., dissenting. J. 8. James, for plaintiff. W. M. Everett, for defendants.