Opinion
37914.
DECIDED JANUARY 26, 1960.
Affidavit of illegality, etc. Gordon Superior Court. Before Judge Davis. April 24, 1959.
Pittman, Kinney Pope, J. T. Pope, Jr., Malcolm C. Tarver, for plaintiff in error.
John D. Edge, contra.
Where, as here, an affidavit of illegality is defective, it is not sufficient to withstand a motion to strike.
DECIDED JANUARY 26, 1960.
Louise Simmons, d/b/a Mercantile Exchange Agency, brought suit against Harwell-McKenzie Pontiac, a partnership composed of J. H. Harwell and W. E. McKenzie, as well as against the individual members of the partnership. The suit was brought jointly and severally on two promissory notes dated July 17, 1957, and transferred to Mercantile Exchange Agency on July 30, 1957. The transfer was made prior to the due date of the two notes on which suit was brought. The notes were signed "Harwell-McKenzie Pontiac by W. E. McKenzie." It is noted that the notes were made payable to "Wilco Equipment Distributors, Inc., L. Simmons, Pres."
The suit was sounded in the name of Mrs. Louise Simmons, d/b/a Mercantile Exchange Agency. The petition alleges that the notes were transferred to her prior to the maturity date. The record discloses that process was served on the defendant Harwell and the defendant McKenzie. Counsel for the plaintiff contends that process was served upon the partnership. It is contended by the defendants that service was upon the individual defendants but was not perfected upon the partnership. The partnership filed no answer, but the two defendants filed answers admitting notice relative to the attorney's fees. The defendant Harwell alleged in the answer that the partnership did not come into existence until September, 1957, the notes having been dated July 17, 1957, and transferred July 30, 1957, thus allegedly showing the partnership not liable. The defendant McKenzie alleged in his answer that the words Harwell-McKenzie Pontiac were inserted in the note after it was executed.
The defendant McKenzie denied that the defendants were operating as a partnership at the time the notes were executed. The defendants filed a motion to set aside the judgments on the grounds that they were void. This was done at and during the term the judgments were entered. It is contended that these motions have not been disposed of by the trial court.
The plaintiff demurred to the answers of the defendants. Upon notice to counsel for the defendants, the trial court, on July 24, 1958, sustained the demurrers to Paragraph 12 of the answers of the defendants. This paragraph goes to the averment that at the time the merchandise for which the notes were given was purchased it was mutually agreed between the defendant and the agent for the seller as to certain technical abilities of the machinery sold and that the agent for the seller agreed to furnish equipment necessary to accommodate the machinery sold, but the plaintiff failed and refused to furnish such equipment; that tender of the merchandise was made back to the plaintiff and such tender has continued to be made; that the equipment in its present state is worthless for the purpose for which it was intended.
The trial court also sustained a general demurrer to the answer as a whole. There was no plea of nul tiel partnership.
The defendant partnership subsequently filed a motion to set aside the final judgment on the ground that the hearing was had in Whitfield County over the protest and objection of the movant; that the Superior Court of Gordon County was in vacation; that a plea of no partnership was filed on behalf of the movant which, in effect, was a plea in abatement. At the same time a similar motion was filed on behalf of the defendant McKenzie. When the case was first in the Court of Appeals, case No. 37475, it was dismissed by this court because of want of prosecution, because the plaintiff filed no brief. Execution was then issued by the Clerk of the Superior Court of Gordon County against the defendants for the amounts specified in the judgments, no supersedeas bond having been filed. The defendant Harwell then executed an affidavit of illegality alleging "that there has been no judgment against him in favor of said plaintiff in execution and no legal basis for the issuance of said execution." The defendant Harwell executed an alleged second affidavit of illegality alleging that there is now a suit pending in the superior court against the named defendant; that he had not had his day in court, and that there is no legal judgment against him. The exception is to the overruling of the motion to strike the affidavits of illegality.
Neither of the two affidavits of illegality was good. The first was defective because it merely alleges "there has been no judgment against [movant] in favor of said plaintiff in execution and no legal basis for the issuance of said execution." The second affidavit of illegality is defective because it alleges "that there is now pending in the superior court in said state and county a suit as above styled against J. H. Harwell individually, alleging that he, the deponent herein, is indebted to the said Louise Simmons, and that the said J. H. Harwell has not had his day in court and that there is no legal judgment against him." Where an affidavit of illegality contains nothing more than mere conclusions and generalities it is insufficient to prevent a dismissal by motion to strike. See Edenfield v. State of Georgia, 80 Ga. App. 716 ( 57 S.E.2d 288). Since we are holding that the affidavits of illegality are not good, it follows that this court is not called upon to pass on any other points involved in the record before us.
Judgment reversed. Townsend and Carlisle, JJ., concur.