Opinion
34196.
DECIDED OCTOBER 17, 1952.
Affidavit of illegality; from Meriwether Superior Court — Judge Boykin. June 2, 1952.
G. C. Thompson, for plaintiff in error.
W. S. Allen, W. M. Redman, contra.
Where a retention-of-title contract was foreclosed to recover a balance due thereon, it was error for the court to disallow an amendment to the defendants' affidavit of illegality setting up that the stock of goods, the subject matter of the contract, was illegally sold at Manchester, Georgia, rather than before the courthouse door in Greenville, the county seat of Meriwether County. Code, §§ 39-1201, 39-1203, 67-703. See Code § 20-1314 for instances in which recoupment may be pleaded. See also Commercial Credit Co. v. Anthony, 48 Ga. App. 725 ( 173 S.E. 204). This disallowance of the amendment on the ground that the sheriff's entry was not traversed and that he was not made a party was error because the only entry by the sheriff shown in the record is that of the levy, the recitals in which are undisputed. Neither was the amendment objectionable as setting up a new defense. The court erred in disallowing the amendment. Such action rendered further proceedings nugatory.
Judgment reversed. Sutton, C.J., and Worrill, J., concur.
DECIDED OCTOBER 17, 1952.
The issues in this case arise from the filing of an affidavit of illegality by Mr. and Mrs. E. C. Copeland to the foreclosure of a conditional-sales contract by Beckham-Daniel Store, a partnership composed of J. T. Beckham and Charles H. Daniel, which contract involved the sale of a stock of goods located at Manchester, Georgia. The first ground of the affidavit of illegality was conceded by the plaintiffs in execution and this issue was eliminated from the case. Paragraphs 2, 3, 4 and 5 of the original affidavit of illegality alleged that the contract of sale was procured by fraud in that the sellers represented that the volume of business done by the store in 1948 was approximately $46,000 and was running about the same up to September 1, 1949, the time of the execution of the contract of sale and that such representation was false and fraudulent, was relied on by the purchasers, and that the contract would not have been entered into but for such misrepresentations. An amendment to the affidavit alleged that the sellers promised to furnish the purchasers the records showing the volume of business, and that the promises were relied on but the records were never furnished. The purchasers tendered another amendment to the affidavit of illegality alleging that the stock of goods involved in the contract was illegally sold on July 11, 1950, in the City of Manchester when the sale should have been before the courthouse door at Greenville, Georgia, and that the sellers bought the goods at the sale without paying anything therefor and that the stock at the time of the sale was worth as much as or more than it was at the time of the contract foreclosed. The court disallowed this amendment, to which judgment the purchasers excepted pendente lite. At the conclusion of the evidence the court, on motion of the plaintiffs in execution, directed a verdict for the plaintiffs in execution, less the amount agreed on as the deduction claimed in the first ground of the affidavit of illegality and less amounts paid by the purchasers. The purchasers, defendants in execution, except to the judgment disallowing the amendment to the affidavit of illegality and the overruling of their motion for a new trial.