Harvey v. Johnson

Bloodworth, J. (After stating the foregoing facts.) 1. The court did not err under the special facts of this ease in ordering that the replevy bond be filed nunc pro tunc as of date December 2, 1920. 2. The demurrer to the affidavit of foreclosure was properly [289] overruled. No counter-affidavit had been filed as provided by § 3366 (6) of the Civil Code of 1910. In Moultrie Lumber Co. v. Jenkins, 121 Ga. 722 (49 S. E. 678), Justice Lamar said: “Where a-laborer’s lien has been foreclosed under the Civil Code [of 1895], § 2816 [§ 3366 (6), supra], 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.” See Wilson v. Griffin, 22 Ga. App. 451, 452, 453 (96 S. E. 395), and cases cited. 3. The court did not err in striking the counter-affidavit. It was never filed in the office of the sheriff, nor did he ever see it until the day of the trial. It was filed in the office of the clerk of the superior court the day before the case was called and disposed of. In Wilson v. Griffin, supra, this court held as follows: “The fact that the defendant offered to file a counter-affidavit on the’ hearing did not save him. The Civil Code, § 3366 (6), after reciting that any person, defendant, or creditor may file such an affidavit, provides that the c affidavit shall form an issue to be returned [italics ours] to the court and tried as other cases.’ It is apparent that this language contemplates that the affidavit be filed with the levying officer as a condition precedent to his returning the case to court for trial.” See Tipton v. Conrad, 21 Ga. App. 593 (94 S. E. 815). 4. Judgment was properly entered against the defendant and his securities. In Giddens v. Gaskins, 7 Ga. App. 221 (66 S. E. 560), this court held: “(1) The giving of the replevy bond did not convert the foreclosure proceedings into mesne process. It required the counter-affidavit to do this; and until such counteraffidayit was made and filed, there was no suit or case to return to the court, and no issue to be tried, the execution issued on the foreclosure of the lien being final process. Moultrie Lumber Co. v. Jenkins, 121 Ga. 721 (40 S. E. 678). (2) In the absence of the counter-affidavit, the plaintiff was authorized under section 2817 of the Civil Code, to enter up judgment on the replevy bond, [290] against the defendant and his surety, in the same manner as in eases of appeal.” 5. Not being fully convinced that this case was brought to this court for delay only, the request that ten per cent, damages be awarded is denied. Judgment affirmed. Broyles, C. J., and Luke, J., concur.