Waters v. Scott

Stephens, J. This being an affidavit of illegality to a judgment rendered against the affiant as surety upon a bond given by the defendant in a proceeding to foreclose a sawmill lien on lumber, and it appearing that the defense set up by the affiant was that the plaintiff had taken possession of the lumber levied on and had converted the same to his own use before judgment had been rendered upon the bond, and this defense being one that could have been made by the affiant before judgment, the court properly- dismissed'the affidavit of illegality. See Shapiro v. Bank of Graymont, 31 Ga. App. 576, and the authority there cited. Judgment affirmed. Jenkins, P. J., md Bell, J., concur.