Opinion
28921.
DECIDED MAY 19, 1941.
Affidavit of illegality of execution; from Fulton civil court — appellate division. December 12, 1940.
Louis M. Tatham, Eldon Haldane, for plaintiff in error.
Reynolds Brandon, contra.
1. Grounds 2 and 5 of the affidavit of illegality did not set up any defense to the foreclosure affidavit, and the judge did not err in striking them on motion of the plaintiff.
2. The ground of demurrer to the foreclosure affidavit, that the copy of the conditional-sale contract was not verified, was without merit. The copy attached to the foreclosure affidavit was sufficiently verified to meet the requirements of the Code, § 67-701, by the statement contained in the affidavit that the defendant was indebted to the plaintiff in a stated sum, upon the contract a copy of which was alleged to be attached and made a part thereof. Thigpen v. Vidalia Chemical Co., 42 Ga. App. 563 ( 156 S.E. 635).
3. No traverse having been filed or issue joined, the judge erred in refusing to determine on the affidavit of illegality, and, over the objections of the defendant, in forcing him to a trial of the case. "Where an affidavit of illegality and the execution have been returned into court, under the Civil Code, § 5307 [1933, § 39-1006], it is the duty of the court to determine `thereon' at the first term, unless the plaintiff or his attorney desires to controvert the facts contained in the affidavit. In that event an issue shall be joined, and tried by a jury. The proper method of joining issue is in writing; and where objection is made by the attorney for the affiant to proceeding to the jury in the absence of any traverse or issue joined or tendered, it is error for the court to overrule the objection merely because the attorney for the plaintiff states orally that he joins issue." Thompson v. Fain, 139 Ga. 310 ( 77 S.E. 166). See also McLeod v. Bird, 14 Ga. App. 77 ( 80 S.E. 207); Beavers v. Cassells, 56 Ga. App. 146, 152 ( 192 S.E. 249). The refusal of the court to determine on the affidavit of illegality rendered all proceedings thereafter nugatory.
4. The appellate division of the civil court of Fulton County erred in affirming the rulings by the trial judge refusing to determine on the defendant's affidavit of illegality, in forcing the defendant into a trial of the case, and overruling the defendant's motion for new trial.
Judgment reversed. Stephens, P. J., and Felton, J., concur.
DECIDED MAY 19, 1941.
T. C. Lanier, trading as Lanier Piano Company, instituted in the civil court of Fulton County a proceeding against Louis M. Tatham, to foreclose a conditional-sale contract for the sale of a piano. A copy of the contract attached to the affidavit disclosed that the contract for the purchase of a described piano for $175, payable $15 cash and the balance in instalments of $7.50 monthly, commencing February 1, 1938, was executed by Tatham under date of December 27, 1937, to Carder Piano Company, together with which appeared a copy of assignment of the contract by Carder Piano Company to Lanier Piano Company on June 1, 1940. The defendant filed an affidavit of illegality on the grounds, that he was not indebted to the plaintiff in the sum claimed, and that the fi. fa. was proceeding illegally, for the reasons: "(1) That the contract attached to the affidavit of T. C. Lanier is not a true and correct copy of the contract as executed by defendant in fi. fa., and that under said contract Carder Piano Company was forbidden to assign or transfer said contract and the attempted assignment of said contract to T. C. Lanier is void and of no effect. (2) That the Carder Piano Company had breached said contract before its attempted assignment to T. C. Lanier, and had refused to perform the lawful conditions of said contract as to trading said piano in on a new piano, and neither the Carder Piano Company nor its purported assignee has any right to bring legal action upon the contract while in default thereto. (3) That Carder Piano Company was not, at the time of the purported assignment of said contract to T. C. Lanier, the legal holder of said contract, and said purported assignment is void and of no legal effect. (4) That W. W. Carder had no authority to assign said contract to T. C. Lanier, and that said purported assignment is void and of no legal effect. (5) That the business of the Carder Piano Company had been completely wound up and finished at the time of the attempted assignment of said contract to T. C. Lanier. The Carder Piano Company being a corporation whose business was wound up, the attempted assignment was void and of no effect, and the right to assign the property formerly belonging to the Carder Piano Company was in the stockholders of said corporation, upon whom the property of said corporation descended when the business of said corporation was wound up."
On motion of the plaintiff paragraphs 2 and 5 of the affidavit of illegality were stricken on the ground that they did not set forth any defense to the foreclosure proceeding. The defendant demurred to the foreclosure affidavit, on the ground that the copy of the conditional-sale contract attached to the affidavit of foreclosure was not sworn to or otherwise attested. The demurrer was overruled. When the case was called for trial the defendant moved that the court determine on the affidavit of illegality, no traverse having been made or issue joined, and objected to going into a trial before the judge, who was presiding without the aid of a jury, for the reason that there was no issue to be tried. This motion was overruled. He excepted pendente lite to all of the rulings just stated. After introduction of evidence the judge rendered judgment in favor of the plaintiff in execution. The defendant's motion for new trial was overruled, and he excepted. On appeal, in which error was assigned on all of the exceptions pendente lite, and on the overruling of the motion for new trial, the appellate division affirmed the judgment of the trial judge, and the appellant excepted.