Sims v. Hatcher
| Decision Date | 08 February 1887 |
| Citation | 3 S.E. 92,77 Ga. 389 |
| Parties | Sims v. Hatcher and another. |
| Court | Georgia Supreme Court |
When the case on trial is made by an affidavit of illegality, a motion by the plaintiff in fi. fa. to dismiss the illegality takes precedence of a motion by the defendant to quash the fi.fa.
Where there are several grounds of illegality set forth in the affidavit, one of which goes to a part of the property levied upon, and the others to all of it, if the plaintiff dismiss the levy, at the hearing, as to the property affected by the one ground, and then demurs to the affidavit as to the other grounds only, and the demurrer be properly sustained, and the execution be ordered to proceed as to the property retained under levy, this does not amount to dismissing the whole illegality, and settles nothing as to the question of costs.
Though the bill of exceptions states that the illegality was dismissed, yet if the judgment sent up in the record is notone of dismissal, but only sustains a demurrer to some of the grounds of illegality, and orders the fi. fa. to proceed as to a portion of the property levied upon, there is nothing to found an exception upon to the alleged dismissal of the illegality.
Error from superior court Stewart county; Fort, Judge. E. T. Hickey and C. J. Thornton, (by brief,) for plaintiff in error. No appearance for defendants.
Is When the case on trial is made by an affidavit of illegality", a motion by the plaintiff in ft. fa. to dismiss the illegality takes precedence of a motion by the defendant to quash the ft. fa. It is an excellent rule, when a case is on trial, to try that case and not switch off on some other. Here the litigation was brought into court by affidavit of illegality, and that was the case under consideration. The defendant sought to make another case, which he could have made under the authorities, without any aflidavit of illegality at all. lie sought to attack the ft. fa., and have it quashed; which could have been done as an independent proceeding, but was not in order on the trial of the aflidavit of illegality. The instance of distress warrants, as ruled in Habersham v. Eppinger, 61 Ga. 199; Drake v. Dawson, 66 Ga. 174, —is in point as an illustration by analogy. That the ft. fa. might have been quashed if it was defective enough to warrant quashing, after the affidavit of illegality was disposed of, may be seen from Haynes v. Richardson, 61 Ga. 390; and that a motion to dismiss a levy may be entertained as an independent case is ruled in Hill v. De Launay, 34 Ga. 427.
2. Where there are several grounds of illegality set forth in the affidavit, one of which goes to a part of the property levied upon, and the others to all of it, if the plaintiff dismiss the levy, at the hearing, as to the property affected by the one ground, and then demur to the affidavit as to the other grounds only, and the demurrer be properly sustained, and the execution be ordered to proceed as to the property retained under...
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Gay v. Lewis
...conflict between the bill of exceptions and the record, the record controls. Hunt v. State, 64 Ga.App. 320, 13 S.E.2d 117; Sims v. Hatcher, 77 Ga. 389(3), 3 S.E. 92; Howell v. Seigler, 89 Ga.App. 221(3), 78 S.E.2d 874.' Johnson v. Johnson, 98 Ga.App. 588(1), 106 S.E.2d 176. In the present c......
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Nelson v. Jordeth
...to be made even upon motion of adverse party to dismiss;” and the author cites Parks v. Johnson, 79 Ga. 567, 5 S.E. 243; Sims v. Hatcher, 77 Ga. 389, 3 S.E. 92; Epping v. Aiken, 71 Ga. 682; Lewis v. Chisholm, 68 Ga. 46. As before stated, the bill of exceptions in this case clearly embodies ......