Gee v. Hall

Stephens, J. 1. Where an affidavit made as the basis of a third party’s claim of title to property levied on under an execution states that the deponent is the attorney at law of a certain named party, and describes the property levied on, reciting the name of the plaintiff and the defendant in fi. fa., and states that the property is not the property of the defendant in fi. fa., but fails to allege that it is the property of the named third party, and alleges that it is the property of the deponent, and where the required bonds accompanying the affidavit are executed in the name of such named third party as principal, and signed in such party’s name by the deponent as such party’s attorney, the proceeding will be construed as a claim filed by such named third party, and not a claim filed by the deponent; and since a claim affidavit is amendable under the Civil Code (1910), § 5706, such an affidavit was properly amended by striking therefrom the allegation that the property levied on was the property of the deponent, and substituting in lieu thereof an allegation that the property levied on was the property of such named third party, the claimant, and the trial judge did not err in allowing such amend [710] ment over the objection of the plaintiff in fi. fa. See, in this connection, Civil Code (1910), § 5682. Decided April 14, 1921. Levy and claim; from Taliaferro superior court — Judge Walker. August 23, 1920. J. A. Milchell, for plaintiff. P. B. Johnson, contra. Judgment affirmed. Jenkins, P. J., and Hill, J., concur.