Wage Earners Real Estate Co. v. Gaulden

Stephens, J. Where a counter-affidavit filed by the defendant to a mortgage foreclosure in a justice’s court is dismissed for insufficiency, in that it sets up no defense to the foreclosure, but constitutes a claim of title to the property, filed by the defendant himself, an appeal is not the defendant’s remedy. Maddox v. Witte, 100 Ga. 316 (27 S. E. 163). See also Howell v. Allen, 106 Ga. 16 (31 S. E. 759) ; Toole v. Edmondson, 104 Ga. 776, 784 (8), 785 (31 S. E. 25); Humphries v. Blalock, 100 Ga. 404 (28 S. E. 165); Rogers v. Bennett, 78 Ga. 707 (3 S. E. 660); Small v. Sparks, 69 Ga. 745. Upon an appeal from such judgment, to the superior court, the defendant could not there, by an amendment, set up a defense to the mortgage foreclosure, and the judge of the superior court did not err in disallowing such amendment and in dismissing the appeal. Judgment affirmed. Jenkins, P. J., and Bell, J., eoneur.