Hicks v. Riley

• Decision Date: 20 May 1889
• Citation: 9 S.E. 771,83 Ga. 332
• Parties: Hicks v. Riley.
• Court: Georgia Supreme Court

9 S.E. 771

(83 Ga. 332)

Hicks

v.Riley.

Supreme Court of Georgia.

May 20, 1889.

Judgment—Validity—Amendment.

1. Where the declaration, verdict, and execution were in the name of George S. Riley, and the judgment in the name of George R. Riley, there is no material difference, and, in the absence of showing that there were two persons named George Riley, an affidavit of illegality on that ground is properly dismissed.

2. An amendment of the judgment by changing the R. to S. was immaterial, and did not vitiate the levy.

Error from superior court. Bibb county; Gustin, Judge.

The following is the official report: An execution in favor of George S. Riley, agent, against J. R. Hicks, having been levied on certain land, Hicks interposed an affidavit of illegality, on the grounds (1) that he was never sued or served, nor was any verdict ever had against him, in any case in which George R. Riley, agent, was plaintiff; (2) because the fi, fa. does not state for whom the plaintiff is agent, and no judgment in favor of one as agent, without expressing for whom he is agent, can be legally rendered; and (3) because the judgment on which the fi. fa. issued does not conform to the verdict in the case. He also moved, at the trial, to dismiss the levy and quash the execution, because "the verdict rendered in said case was in favor of one Geo. S. Riley, agent, and not in favor of Geo. R. Riley, as alleged and set forth in said judgment." This motion was overruled. On motion of the plaintiff, the affidavit of illegality was disallowed and stricken, to which ruling, as well as to theoverruling of the motion to quash the execution, the defendant excepts.

Patterson & Hodges, for plaintiff in error. J. P. Ross and Hardeman & Davis, for defendant in error.

Simmons, J. The facts of this case will be found in the official report. There was no error in the trial judge in sustaining the demurrer to this affidavit of illegality. The law does not regard the middle name or middle initial of a person as material, unless it be shown that there are two persons of the same first name and the same surname. This record fails to show that there were two persons named George Riley. Hence when the declaration was in the name of George S. Riley, and the verdict was for George S. Riley, and the judgment was in the name of George R. Riley, and the execution issued in the name of George S. Riley, there was no material difference between the verdict and judgment and the execution, and the court was...