Legal Opinion

Misenheimer v. Gainey

Court of Appeals of Georgia

Decided July 23, 1912No. 4038PublishedCited by 1 opinion

Affidavit of illegality; from city court of Bainbridge — Judge Harrell. February 5, 1912. This was a proceeding to foreclose a lien on a sawmill and on lumber for logs furnished the mill, under section 3358 of the Civil Code (1910). The defendant, through his agent, filed a counter-affidavit, alleging: (1) He was not indebted to the plaintiff in the sum sued for.

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Affidavit of illegality; from city court of Bainbridge — Judge Harrell. February 5, 1912. This was a proceeding to foreclose a lien on a sawmill and on lumber for logs furnished the mill, under section 3358 of the Civil Code (1910). The defendant, through his agent, filed a counter-affidavit, alleging: (1) He was not indebted to the plaintiff in the sum sued for. (2) He admitted an indebtedness of $40 and tendered this amount, but denied any indebtedness in excess of this sum, contending that the balance sued for was not yet due. (3) No demand'for payment of the debt was ever made upon him as…

1Opinion of the CourtHill, C. J.

(After stating the foregoing facts.)

1.' The first question to be decided is whether the court erred in refusing to allow the amendment to the plea, as verified by the defendant’s attorney at law. The general rule is that attorneys .are not authorized to make affidavits required to be made by the parties, unless specially permitted by law. Civil Code (1910), § 4955. Section 3366, paragraph 6, relating to the foreclosure of liens on personal property, declares: “If the person defendant in such execution, or any creditor of such defendant, contests the .amount or justice of the claim, or the…

2Cases cited3 opinions

  1. Slappey v. CharlesCourt of Appeals of Georgia · 1910
  2. Poullain v. PiggSupreme Court of Georgia · 1878
  3. Fort v. WestSupreme Court of Georgia · 1875

3Cited by1 opinion

  1. Atlantic Coast Line Railroad v. SellarsCourt of Appeals of Georgia · 1953

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