Sims v. Hatcher & Wilkerson
Supreme Court of Georgia
Practice in Superior Court. Costs. Practice in Supreme Court. Before Judge -Fort. Stewart Superior Court. April Term, 1886. An execution based upon the foreclosure of a chattel mortgage in favor of Hatcher & Wilkerson against G. L. Sims was levied on two mules and about forty bushels of corn.
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Practice in Superior Court. Costs. Practice in Supreme Court. Before Judge -Fort. Stewart Superior Court. April Term, 1886. An execution based upon the foreclosure of a chattel mortgage in favor of Hatcher & Wilkerson against G. L. Sims was levied on two mules and about forty bushels of corn. The defendant filed an affidavit of illegality on the following grounds, in substance: (1.) Because, at the time the mortgage was given, Sims had not planted his crop, nor did he have growing any corn or cotton, as set forth in the mortgage under which the execution was issued and the levy made. (2.)…
1Opinion of the Court
Bleckley, Chief Justice.
1. 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 amotion by the defendant to quash the fi.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 affidavit of illegality at all. He sought to attack the fi.fa.…
2Cases cited5 opinions
- Habersham v. Eppinger & RussellSupreme Court of Georgia · 1878
- Manry v. ShepperdSupreme Court of Georgia · 1876
- Haynes v. RichardsonSupreme Court of Georgia · 1878
- Hill v. DeLaunaySupreme Court of Georgia · 1866
- Drake v. DawsonSupreme Court of Georgia · 1880
3Cited by5 opinions
- Howell v. SeiglerCourt of Appeals of Georgia · 1953
- Johnson v. JohnsonCourt of Appeals of Georgia · 1958
- Gay v. LewisCourt of Appeals of Georgia · 1960
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- Tilley v. Cooke & FlakeSupreme Court of Georgia · 1924