Opinion
36929.
DECIDED JANUARY 17, 1958.
Foreclosure; affidavit of illegality, etc. Before Judge Espy. Chattooga City Court. August 23, 1957.
Robert Edward Surles, for plaintiff in error.
Bobby Lee Cook, Charles T. Culbert, contra.
1. The motion to dismiss the bill of exceptions is denied.
2. In this proceeding to foreclose a conditional-sale contract there was no levy on the property described therein, without which there can be no affidavit of illegality. Accordingly the judgment overruling the general demurrer to the purported affidavit was error.
DECIDED JANUARY 17, 1958.
On October 11, 1955, in a former case, Associates Discount Corporation filed a proceeding to foreclose a conditional-sale contract covering an automobile purchased by Ray C. Gentry. The automobile was levied on, after which under order of the Judge of the Chattooga City Court where the foreclosure proceeding was pending, it was sold by short-order judicial sale and the proceeds paid over to the clerk of that court on November 17, 1956. Gentry, defendant in fi. fa., filed an affidavit of illegality, the overruling of a demurrer to which was sustained by this court. Associates Discount Corp. v. Gentry, 95 Ga. App. 26 ( 96 S.E.2d 640). On September 17, 1956, Gentry's motion to quash the levy of execution in that case was sustained. Thereafter, on November 16, 1956, the plaintiff in error commenced a new proceeding on which this writ of error is based to foreclose on the same automobile and made affidavit for that purpose. The sheriff's return on the second foreclosure is as follows: "I have not levied the within fi. fa. upon the property therein for the reason that I did levy upon the said property, to wit: One Ford Automobile, 1955 Model V-8 Fordor Sedan, Motor Number U5AT-176198 on the 11th day of October, 1955, by virtue of an execution issued from the city court of said county in favor of Associates Discount Corporation against Ray C. Gentry, Case No. 856 in said court; and by virtue of an order issued October 14, 1955, by the Honorable Thomas J. Espy, Jr., judge of the city court of said county, I did advertise said property levied on as aforesaid, as required by law, for sale on the 25th day of October 1955, and that at said time I did offer said property for sale, according to law, when the same was bid off by Associates Discount Corporation, it being then and there the highest and best bidder, at and for the sum of $1610, which sum I have paid unto the clerk of said court for disposition according to law. This 17th day of November, 1956. Fred Stewart, Sheriff, Chattooga County, Georgia." On December 12, 1956, Gentry filed an affidavit of illegality, to which the plaintiff in error filed general and special demurrers. The overruling of these demurrers is here assigned as error.
1. "An order overruling a demurrer to an affidavit of illegality is such a final judgment as will support a writ of error therefrom." Miles v. Swift, 38 Ga. App. 42 (1) ( 142 S.E. 472); Artope v. Barker, 72 Ga. 186; Chattooga County v. Glenn, 29 Ga. App. 114 ( 113 S.E. 704). "When the record shows clearly who were parties to the litigation in the court below, the writ of error shall not be dismissed because the bill of exceptions fails to specify or designate the parties plaintiff in error or defendant in error." Code (Ann.) § 6-1202 (Ga. L. 1957, pp. 224, 228). Accordingly, a bill of exceptions reciting that the trial court passed an order overruling the general and special demurrers filed by the plaintiff to the affidavit of illegality filed by the defendant, and that to this ruling the plaintiff in error, Associates Discount Corporation, excepted and now excepts and assigns the same as error on the ground that it was contrary to law for the reason that the affidavit of illegality fails to present any defense to plaintiff's execution, is sufficient, and the motion to dismiss the bill of exceptions must be denied.
2. Under Code § 67-1601, foreclosure of conditional-sale contracts shall be the same as the procedure for foreclosure of mortgages. Code § 67-703 dealing with foreclosures of mortgages on personal property provides that the sheriff shall, when the execution shall be delivered to him, levy upon the property. Under Code § 39-1003, no affidavit of illegality shall be received by any sheriff or other executing officer until a levy shall have been made. Until there is a levy, the affidavit of illegality cannot legally be filed and is subject to dismissal. Georgia Ry. Power Co. v. Head, 150 Ga. 177, 178 ( 103 S.E. 158); Robbins v. Kinman, 177 Ga. 46 ( 169 S.E. 304). Likewise, of course, until there has been a levy there is nothing upon which the foreclosure proceeding itself can operate. Code § 67-1601, supra; Kellogg Co. v. Buckler Short, 17 Ga. 187, 191 (3).
The fact that under the prior foreclosure proceeding, which was eventually quashed, the automobile was levied upon and sold has no bearing upon what is ruled here. That proceeding was another and different case and is not before the court at this time, and we cannot decide in this case either the rights of the parties or third persons, or the proper disposition of the fund which came into the court in the former case before its dismissal. There has been no levy in this case, for which reason there is no valid affidavit of illegality in this record. The court should have dismissed the pleading for this reason, and, since the general demurrer on the ground that the affidavit of illegality presents no legal defense is broad enough to cover this point, it was error to overrule it. Since the affidavit of illegality was not in proper form for consideration, the rulings of the court on the special demurrers are nugatory and cannot affect this case in the trial court.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.