Wage Earners' Real Estate Co v. Gaulden

• Citation: 43 Ga.App. 702,159 S.E. 910
• Decision Date: 27 August 1931
• Docket Number: No. 21165.,21165.
• Parties: WAGE EARNERS' REAL ESTATE CO. v. GAULDEN.
• Court: Georgia Court of Appeals

43 Ga.App. 702

159 S.E. 910

WAGE EARNERS' REAL ESTATE CO.

v.GAULDEN.

No. 21165.

Court of Appeals of Georgia,

Division No. 2.

Aug. 27, 1931.

Syllabus by Editorial Staff.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Action by H. G. Gaulden against the Wage Earners' Real Estate Company. The justice court dismissed defendant's counter affidavit for insufficiency, and the superior court disallowed an amendment to the counter affidavit and dismissed defendant's appeal from the justice's court order, and defendant brings error.

Affirmed.

W. H. H. Jones and Sam F. Garlington, both of Augusta, for plaintiff in error.

Paul T. Chance, of Augusta, for defendant in error.

Syllabus Opinion by the Court.

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, 101 Ga. 776, 784(8), 7S5, 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 & Son, 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., concur.