Legal Opinion

Haines v. Clary & Whaley

Supreme Court of Georgia

Decided February 15, 1881PublishedCited by 2 opinions

Haines and Mitchell -filed their bill against Clary & Whaley, the sheriff of Wayne county, and a constable, alleging that certain executions in favor of Clary & Whaley were proceeding against them and their property illegally, were void upon numerous grounds, that they had tendered affidavits of illegality to the sheriff, who had refused to receive the same ; praying injunction, and that the fi. fas be called in to be cancelled.

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Haines and Mitchell -filed their bill against Clary & Whaley, the sheriff of Wayne county, and a constable, alleging that certain executions in favor of Clary & Whaley were proceeding against them and their property illegally, were void upon numerous grounds, that they had tendered affidavits of illegality to the sheriff, who had refused to receive the same ; praying injunction, and that the fi. fas be called in to be cancelled. The sheriff and Clary.& Whaley acknowledged service. The constable-was never served. Clary & Whaley answered at length for themselves, but the sheriff made no…

1Opinion of the Court

1. Where, upon the calling of a case, a motion is made to dismiss the writ of errór, and immediately thereafter a diminution of the record is suggested, the latter will have precedence and will be first disposed of before the motion to dismiss is considered, even though the record, if completed, would not prevent a dismissal. The court will not dispose of any case finally with an incomplete record where a suggestion of a diminution is made on or before the calling of the case.

2. The sheriff is a necessary party to a bill of exceptions filed to the refusal to grant a new trial on the motion of…

2Cited by2 opinions

  1. Western Union Telegraph Co. v. GriffithSupreme Court of Georgia · 1900
  2. Weaver v. Bank of BowersvilleSupreme Court of Georgia · 1916

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