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Call Now: 904-383-7448Affidavits of illegality are, upon motion and leave of court, amendable instanter by the insertion of new and independent grounds, provided that the defendant shall swear that he did not know of such grounds when the original affidavit was filed.
(Laws 1850, Cobb's 1851 Digest, p. 518; Code 1863, § 3430; Code 1868, § 3450; Code 1873, § 3501; Code 1882, § 3501; Civil Code 1895, § 5120; Civil Code 1910, § 5704; Code 1933, § 39-1005.)
This section permits affidavit of illegality to be amended by setting up new grounds of fact, provided that the affiant swears that the affiant had no knowledge of those facts when the affidavit was filed. The absence of the oath is ground for demurrer (now motion to dismiss). Mosley v. Fryer & Son, 102 Ga. 564, 27 S.E. 667 (1897); Ray v. Hixon, 107 Ga. 768, 33 S.E. 692 (1899); Georgia N. Ry. v. Cone, 17 Ga. App. 786, 88 S.E. 701 (1916).
This section has no particular reference to amendments setting up purely equitable defenses, or defenses praying for ordinary or extraordinary relief, and the right to such amendments must be determined by the law in reference thereto. Tanner v. Wilson, 183 Ga. App. 53, 187 S.E. 625 (1936).
Affidavit of illegality is amendable by adding new and distinct grounds. Head v. Edgar Bros. Co., 60 Ga. App. 482, 4 S.E.2d 71 (1939), appeal dismissed, 309 U.S. 630, 60 S. Ct. 617, 84 L. Ed. 989 (1940).
Amendment of affidavit cannot raise pure questions of law. Savannah v. Wade, 148 Ga. 766, 98 S.E. 464 (1919).
Amendments may alter grounds of illegality already filed. Inman v. Miller, 71 Ga. 293 (1883).
New affidavit cannot be substituted for void one. Van Dyke v. Besser, 34 Ga. 268 (1866).
Jurat to affidavit of illegality is amendable by adding the official designation of the person who administered the oath. Smith v. Walker, 93 Ga. 252, 18 S.E. 830 (1894).
Demurrer (now motion to dismiss) by defendant in execution cannot raise defenses which are subject matter of affidavit of illegality. Glynn County v. Dubberly, 148 Ga. 290, 96 S.E. 566 (1918).
- When a demurrer (now motion to dismiss) to an affidavit of illegality is sustained with leave to the affiant to amend within 30 days by setting out the manner and method of an alleged payment, an amendment meeting the conditions contained in the court's order, which is filed in the office of the clerk of the court within the specified period, but which was not, within that period, allowed by an order of the court, does not constitute a legal amendment to the affidavit of the illegality. Clark v. J.R. Watkins Co., 43 Ga. App. 697, 159 S.E. 911 (1931).
- When an amendment to an affidavit of illegality was offered and the amendment contained no averment under oath that the additional grounds set out therein were unknown to the affiant at the time of the filing of the original affidavit, the amendment was properly disallowed. Kile v. City of Marietta, 42 Ga. App. 169, 155 S.E. 498 (1930).
It is not error for the court to disallow the amendments offered by the deponent in absence of the oath of the deponent that the deponent did not know of the grounds set out in the amendments when the original affidavit was filed. Aycock v. Universal C.I.T. Credit Corp., 80 Ga. App. 797, 57 S.E.2d 510 (1950).
When upon demurrer (now motion to dismiss) hearing, the affiant tendered an amendment to the affiant's original affidavit of illegality, which did not contain any averment that the affiant did not know of such grounds when the original affidavit was filed, under the provisions of this section the court properly disallowed the amendment upon objection thereto on this ground. Deese v. City of Dublin, 88 Ga. App. 341, 76 S.E.2d 629 (1953).
Amendment which merely amplifies or amends ground in original affidavit need not be sworn to. McCook v. Laughlin, 9 Ga. App. 550, 71 S.E. 917 (1911); Cooper Co. v. Lanier, 17 Ga. App. 688, 87 S.E. 1092 (1916); Savannah v. Wade, 148 Ga. 766, 98 S.E. 464 (1919); Head v. Wilkinson, 186 Ga. 739, 198 S.E. 782 (1938); Williamson v. Tracy Bldrs., Inc., 94 Ga. App. 203, 94 S.E.2d 139 (1956).
- Failure to amend an affidavit which was subsequently dismissed permits the plaintiff to assert all the plaintiff's rights. Ansley v. Wilson, 47 Ga. 280 (1872).
Failure to object will be held to be waiver of requirement for verification. Evans v. Evans, 62 Ga. App. 618, 9 S.E.2d 99 (1940).
- Court erred in allowing amendment seeking to attack judgment which showed on the judgment's face that it was a consent judgment. Evans v. Evans, 62 Ga. App. 618, 9 S.E.2d 99 (1940).
Cited in Heard v. Sibley, 52 Ga. 310 (1874); Rawlings v. Brown, 15 Ga. App. 162, 82 S.E. 803 (1914); Carmichael v. Mobley, 50 Ga. App. 574, 178 S.E. 418 (1934); Thompson v. Georgia Power Co., 73 Ga. App. 587, 37 S.E.2d 622 (1946); McLendon v. Lemon, 79 Ga. App. 751, 54 S.E.2d 437 (1949); Sirmans v. Citizens & S. Nat'l Bank, 132 Ga. App. 894, 209 S.E.2d 697 (1974).
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 269 et seq.
- 33 C.J.S., Executions, § 291 et seq.
No results found for Georgia Code 9-13-125.