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Story et al. vs. Flournoy, McGehee & Company.

3. Such counter-affidavit, which was the foundation of a legal proceeding,

cannot be amended after it has been returned into court, either by the filing of a new affidavit or otherwise, so as to change the issue thereby presented.

JACKSON, Judge, dissenting. 1. “ Pleadings are the altercations between the plaintiff and the defendant,"

and in cases of the summary foreclosure of a crop lien, the affidavits are the only altercations between the plaintiff and the defendant, and therefore the only pleadings. Hence the affidavit of the defendant is his plea, and he

may amend it, as a matter of right, at any stage of the cause. 2. If the defendant, when regularly sued and served, with six months for

preparation for trial allowed him, may, then, at any stage of the trial, amend his pleas, a fortiori in a summary proceeding begun by the seizure of his property and for trial at the first term, he should be allowed the right to

amend. 3. Nor does it alter his right to amend, that, in a case like this, his plea is an

affidavit; all pleas to bring parties to an issue of fact must be sworn to; if this defendant had been sued by the regular process of the court and had put in the same plea which his counter-affidavit makes here, it must have been sworn to by him, yet he could have amended that, so also may he

amend this. 4. Section 3504 of our Code provides that “an affidavit which is the foun

dation of a legal proceeding cannot be amended except expressly pro vided by law," therefore by a weighty negative pregnant, by a very strong implication, it affirms that an affidavit which is not the foundation of a legal proceeding may be amended without an express provision of law, that is, under the general liberal law of the amendment of pleadings, if it be in the nature of a plea; the affidavit of the defendant here is not the foundation of a legal proceeding, but it is the defense to the plaintiff's affi. davit of foreclosure, which latter affidavit is the foundation of the suit; hence, while the affidavit of the plaintiff could not be amended, because it is such foundation and no express law authorizes it to be amended, the counter-affidavit of the defendant may be amended under the general law, because it is not the foundation of a legal proceeding, and needs no such

express provision to authorize an amendment to it. 5. The distinction is broad between an affidavit of illegality to an execution

after the defendant has been heard on his defense to the original cause of action, and this affidavit which enables him to be heard for the first time in court; and the statute, which puts the defendant in illegality on terms before he can amend his affidavit, has no application, either in letter or spirit,

to the defense to this summary proceeding. 6. A plea to the effect that the lien on the crop of 1874 was not for money,

nor supplies, nor necessaries, to make that crop, but was a lien given to pay an old debt due the preceding year, is a good plea in bar of the proceeding to foreclose it, and should have been allowed when offered as an amendment before the concluding counsel for the plaintiff had opened his argument

VOL. LV. 5.

Doubted, 65/444(la).

Story et al. vs. Flournoy, McGehee & Company.

Factor's lien. Waiver. Illegality. Amendment. Before Judge JAMES JOHNSON. Marion Superior Court. April Term, 1875.

Reported in the opinions.

B. B. HINTON & SON; E. H. WORRILL, for plaintiffs in


E. B. HATCHER; BLANDFORD & GARRARD, for defendants.

WARNER, Chief Justice.

This was a proceeding instituted by the plaintiffs as factors and commission merchants, against the defendants for the foreclosure of a crop lien for money advanced by the plaintiffs to make it, under the provisions of the 1978th section of the Code. The defendant, J. A. Story, filed a counter-affidavit alleging that the amount claimed by plaintiffs was not due, and that the plaintiffs having accepted security for the money advanced, it was an abandonment of their lien. The papers were returned to the superior court, and on the trial of the issue thus formed between the parties, the jury found a verdict for the plaintiffs. The defendants made a motion for a new trial on the several grounds set forth in the record, which was overruled by the court, and defendants excepted.

1. There was no error in the charge of the court that the taking personal security on the note, did not operate as a waiver of the lien.

2. It appears from the record, that after the argument of the case had been concluded, the defendant, J. A. Story, offered to amend the issue which had been made by his former counter-affidavit, by offering another affidavit (having given plaintiffs' counsel notice before the conclusion of the argument that he would do so,) to the effect, that the consideration of the note, the foundation of the plaintiffs' action, was not for money or supplies furnished to enable him to make a crop, but was for a note which one Toliver held against him, which

Story et al. vs. Flournoy, McGehee & Company.

was due in 1873. The court refused to allow the issue to be amended by the additional affidavit thus offered, and this is one of the errors assigned in the motion for the new trial. By the 1991st section of the Code, it is declared that if the defendant in such lien execution contests the amount, or justice of the claim, or the existence of such lien, he may file his affidavit of the fact, setting forth the ground of such denial, which affidavit shall form an issue to be returned to the court and tried as other causes. The defendant does not allege in his second affidavit which he offered to file, that the facts stated therein were not known to him when he filed his first counter-affilavit and made up the issue between him and the plaintiffs. Although this is not an affidavit of illegality, yet, the same rule in principle applicable to a second affidavit of illegality, would seem to be applicable to the defendant's second affidavit in this case. But it is said the defendant has never had his day in court, never had an opportunity to plead to the plaintiffs' claim until the execution was levied on his property. The reply is, that the statute points out the mode and manner in which he shall plead and make his defense by filing his counter-affidavit, and that shall form an issue between him and the plaintiff to be tried as other causes. What issue is to be tried as other causes? Most obviously, the issue made by the defendant's counter-affidavit returned into court, and not an issue which he may thereafter make by filing another affidavit. Besides, to allow a defendant in this class of cases, to file a second affidavit and form a new issue, without alleging that the facts set forth in the second affidavit were not known to him when he made his first counter-affidavit, would be to defeat the object of the statute, which was intended to give to plaintiffs a summary remedy to collect this class of debts. If the defendant shall be allowed at the trial of the issue formed on his first counter-affidavit, to surprise the plaintiffs by making a new issue by filing a second affidavit containing facts well known to him when he filed bis first affidavit, and thereby force the plaintiffs to a continuance of

Story et al. vs. Flournoy, McGehee & Company.

the case to meet that new issue, one of the main objects of the statute, will be defeated.

3. Besides, the practical effect of the motion made by the defendant was to amend his first counter-affidavit, which was the foundation of his defense, and the proceeding which was returned into court for trial. The 3504th section of the Code declares that an affidavit which is the founilation of a legal proceeding cannot be amended, except expressly provided by law. The first counter-affidavit made by the defendant was the foundation of the legal proceeding which was returned into court for trial, and there is no law of which we are advised that provides for the amendment of that affidavit after it has been returned into court, either by the filing of a new affidavit or otherwise, so as to alter or change the issue made

There was no error in the refusal of the court to allow the amendment offered.

Let the judgment of the court below be affirmed.

by it.

BLECKLEY, Judge, concurred, but furnished no written opinion.

JACKSON, Judge, dissenting. · I regret that my judgment constrains me to dissent from the decision of the court in this case. I need not say that I do so withi entire respect for the majority of the court. Indeed, the only distrust I have in regard to the correctness of my own opinion is my confidence in the accuracy of their judgments. Nevertheless, I should feel altogether unworthy of a seat by them here if I shrank from standing alone and giving expression to my solitary convictions, and sustaining them with such reasons as have led me to entertain them.

Flournoy, McGhee & Company undertook to foreclose a lien against J. A. and B. A. Story, the latter being security, by the summary proceeding authorized by section 1991 of the Code. Defendants defended the case under sub-section 4 of section 1991. On the 13th of March, 1873, J. A. Story filed an affidavit to the effect that he had paid $146 00 on the lien,

Story et al. vs. Flournoy, McGehee & Company. and that it was given, not for supplies, but for money.

Afterwards he put in another plea, that B. A. Story was security, and that fact discharged the crop lien, and that it was paiil off. On the trial of the case, and before the conclusion of plaintiffs' argument, counsel for defendant moved to amend the pleadings by adding thereto the following affidavit:


“Before me, Thomas B. Lumpkin, clerk of superior court for said county, comes J. A. Story, one of the defendants in the case of Flournoy McGehee & Company vs. J. A. Story and B. A. Story, who, being duly sworn, deposeth and saitlı, that the consideration of the note, foundation of plaintiffs’ action, was not for money or supplies to enable defendant to make a crop, but was for money advanced to one Taliaferro, in payment

of a note, which said note was due in 1873.”

The lien was on the crop of 1874. The court would not allow the amendment. I think this amendment should have been allowed. Is the affidavit in such a case pleading ? “Pleadings are the mutual altercations between the plaintiff and defendant:" Blackstone, 3d book, page (top) 225. If there be any pleadings at all in cases like this, the affidavit of the plaintiff, which begins the controversy or altercation on his part, and the counter-affidavit of the defendant, which sets up matters of defense on his part, must be the pleadings. They are certainly the altercations between the plaintiffs, Flournoy McGehee & Company and the defendants, the Storys. To all intents and purposes, these affidavits and counter-affidavits are the pleadings; if not, the strange thing is presented in a court of a case being tried where there are no altercations between the parties-no assertion of right on the one side and denial of it on the other.

The object of all pleaslings is to bring the parties to an issue. “Issue or exitus being the end of all pleadings, is the fourth part or stage of an action, and is either upon matter of law or matter of fact.” “An issue of fact is where the fact

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