Lytle v. Vaughn
| Decision Date | 11 July 1888 |
| Citation | 81 Ga. 226,7 S.E. 281 |
| Parties | Lytle v. De Vaughn. |
| Court | Georgia Supreme Court |
By section 3505 of the Code all bonds taken under requisition of law, in the course of a judicial proceeding, may be amended and new security given if necessary. A bond given on filing an affidavit of illegality by the defendant in a mortgage fi. fa., issued to subject personal property, falls under this section, and if the penalty be too small, and the condition variant from that prescribed by the statute, it is amendable in both respects.
The motion to amend is in time if made before any order or judgment dismissing the illegality has been entered, although the court has orally announced that the motion to dismiss is sustained. (Syllabus by the Court.)
Error from superior court, Macon county; Fobt, Judge.
IV. H. Fish and J W Hayaood, for plaintiff in error. F. T. Snead, and J. M. Dupree by N. J. & T. A. Hammond, for defendant in error.
Bleckley, C. J. 1. The bond required by statute, (Code, § 3976,) in order to entitle the mortgagor to a hearing on his affidavit of illegality, was in a larger penalty, and with a somewhat different condition from that expressed in the bond which was given in this case. But the offer to amend in both respects, which was made pending the proceeding in the court below, ought to have been allowed. By the Code, § 3504, "an appeal-bond, and all other bonds taken under requisition of law in the course of a judicial proceeding, may be amended, and new security given if necessary." The bond in question being one taken under requisition of law in the course of a judicial proceeding, to-wit, the interposition acceptancy, and return of an affidavit of illegality, and the investigation consequent thereupon, is within the designation "other bonds, " just quoted, and consequently its amendment is expressly authorized. True it is, that the bond given was so defective, that the officer should not have accepted it nor returned the papers to the court, but, on thecontrary, should have proceeded to sell the property which he had seized by virtue of the mortgage fi. fa. Brantley v. Baker, 75 Ga. 676. But as he did accept the bond, and return the papers to court for trial, there was in fact a judicial proceeding in progress; and when that is so, the bond, however defective, is amendable. The Code does not contemplate the amendment of only slight...
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Evans v. Southern Ry. Co
...had been entered; and, although the court had announced orally that the motion to dismiss was sustained, was in time." Lytle v. De Vaughn, 81 Ga. 226, 7 S. E. 281. The real question in the case is whether the court can in any case adjudge that it is negligence for a passenger to jump from a......
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Evans v. Southern Ry. Co.
... ... judgment had been entered; and, although the court had ... announced orally that the motion to dismiss was sustained, ... was in time." Lytle v. De Vaughn, 81 Ga. 226, 7 ... S.E. 281 ... The ... real question in the case is whether the court can in any ... case ... ...
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Pulliam v. Jenkins
...to have his verdict entered at the proper time." In the case at bar this provisional requirement was not followed. In Lytle v. De Vaughn, 81 Ga. 228, 7 S.E. 281, court announced orally that the motion to dismiss an illegality was granted. No order of dismissal was entered on the original pa......
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Pulliam v. Jenkins
...to have his verdict entered at the proper time." In the case at bar this provisional requirement was not followed. In Lytle v. De Vaughn, 81 Ga. 228, 7 S. E. 281, the court announced orally that the motion to dismiss an illegality was granted. No order of dismissal was entered on the origin......