Bellington v. Bryant

Stephens, J. Whether or not, under section 3366, subsection 6, of the Civil Code of 1910, which provides that in order to arrest the proceedings and form an issue upon a foreclosure of a laborer’s lien the defendant in execution “may file his affidavit of the fact, . , whfqh [772] affidavit shall form an issue to be returned to the court and tried as other causes,” the affidavit must be filed with the levying officer, the affidavit nevertheless must be returned to the court out of which the execution issued. It was a sufficient return of such a counter-affidavit that it was filed with the court and the levying officer immediately notified, and when the case was called for trial upon the issue made by the filing of the affidavit, no sale of the property under the execution had taken place. The filing of the affidavit under the circumstances was a substantial compliance with any requirement, if any, that it be filed with the levying officer. This ruling is distinguishable from the rulings made in Wilson v. Griffin, 22 Ga. App. 451 (96 S. E. 395), and Harvey v. Johnson, 28 Ga. App. 287 (111 S. E. 576). The court did not err in overruling the plaintiff’s motion to dismiss the counter-affidavit. Decided September 24, 1932. E. T. Golightly, lor plaintiff. Judgment affirmed. Jenkins, P. J., and Sutton, J. concur.