Anderson v. Georgia State Bank

Jenkins, P. J. 1. Under the Civil Code (1910), § 6288, a second affidavit of illegality “shall not be received by any sheriff or other officer, for causes which existed and were known, or in the exercise of reasonable diligence might have been known at the time of filing the first.” Anderson v. Bank of Chatsworth, 22 Ga. App. 736 (97 S. E. 255). The fact that the first affidavit of illegality was dismissed by the defendant, or withdrawn, without a hearing thereon, does not make an exception to the rule stated. Bell v. Atlanta Telephone & Telegraph Co., 15 Ga. App. 680 (84 S. E. 163). 2. The affidavit of illegality in the instant case, which alleged that a former affidavit had been filed and withdrawn by the defendant, and which was based upon the alleged illegal rendition of the judgment upon which the plaintiff’s execution was based, was properly dismissed on demurrer, since the defendant must have had knowledge, at the time of filing the first affidavit, of the facts upon which the second affidavit was based, and no reason for the omission of such facts from the first affidavit was set forth in the second affidavit. See, in this connection, Hambrick v. Crawford, 55 Ga. 335 (2), 339; Hunter v. Davidson, 59 Ga. 261. Judgment affirmed. Stephens and Bell, JJ., concur. H. E. Anderson, for plaintiff in error. J. M. Sellers, contra.