Shadrick v. Toms

Bloodworti-i, J. (After stating the foregoing facts.) In Morris-Bell Co. v. Wall, 32 Ga. App. 774 (124 S. E. 814), the headnotes are as follows: “On the trial of the issue raised by an affidavit of illegality the question of title to the property levied on is not involved, and neither side can inject this issue into the case. An affidavit of illegality in which the defendant in execution avers that the property levied on is his property is not subject to dismissal on the ground that his testimony at the trial shows it to be the property of another, and that therefore the court has no jurisdiction of the case.” Under these rulings the court erred in dismissing the affidavit of illegality on the ground stated in the order of the judge which is copied in the foregoing statement of facts. Had the statement in the affidavit of illegality been the same as that in the order dismissing it, then, under the ruling in State v. Sallade, 111 Ga. 700 (36 S. E. 922), the affidavit would have been dismissed on this ground. But in this case, as in the Morris-Bell case, supra, the property was levied upon as the property of the defendant, the plaintiff was attempting to subject it as such, and, as was said in that ease, “it does not now lie in the mouth of the plaintiff to deny that the levy was made on the property of the defendant.” [689] However, although the court gave a wrong reason for dismissing the affidavit of illegality, the order dismissing it was not erroneous. “A judgment will be affirmed if correct upon any ground, even though an erroneous reason should be assigned.” Standard Gas Products Co. v. Vismor, 31 Ga. App. 419 (6) (121 S. E. 854), and cases cited. The plaintiff was foreclosing a contract in which title was reserved to secure a debt, and this was a proceeding ex contractu. The defense is based upon a tort not growing out of the failure of the plaintiff to comply with any of his cross-obligations arising under the contract. In Georgia Lumber Co. v. Johnson-Battle Lumber Co., 31 Ga. App. 290 (120 S. E. 640), this court held that “The court erred in overruling the demurrer attacking a portion of the plea, upon the ground that the defendant sought therein to set off an item of damage arising ex delicto against a cause of action arising ex contractu.” The principle here announced is applicable to this.case. The Supreme Court in White v. Blitch, 112 Ga. 775 (38 S. E. 80), held: “It is proper to strike paragraphs of an answer designed to set up the defense of recoupment, when they do not, by sufficient and appropriate allegations of fact, show that the damages therein claimed were occasioned by. reason of a breach by the plaintiff of the contract sued on.” Under this ruling the plea of recoupment should have been stricken, as it does not show that “the damages therein claimed were occasioned by reason of a breach by the plaintiff of the contract sued on.” Moreover, even where a plea of recoupment is allowed on equitable grounds, because the plaintiff is a nonresident or insolvent, the nonresidence or insolvency must be pleaded absolutely and unequivocally. This was not done in this case. Judgment affirmed. Broyles, G. J., and Luke, J., concur.