
    10893.
    Day v. Bank of Sparks.
    Decided December 16, 1919.
    Affidavit of illegality; from city court of Nashville—Judge Lovett. August 33, 1919.
    The affidavit of illegality was interposed by Mrs. H. A. Day in March, 1918, to an execution based on a judgment rendered against her and Ed. Courson in favor of the Bank of Sparks in the city court of Nashville on February-38, 1918. The grounds of the affidavit were: This defendant has never had her day in court, has never been served with a copy of said original suit, had no notice of the pendency of the suit until after judgment, did not waive service, and did not appear and plead to the suit. She traverses the return of the deputy sheriff, J. M. Studstill, “made on December 38th, 1918 [?],” and shows that said return is incorrect and untrue; and she asks that said officer be made a party to this action, for these reasons. Defendant shows that she had a good and valid defense to said suit, to wit: She at the time of the signing of “said note” was married, and she was influenced to sign the same by her husband, whose debt the signing of the note paid; it was not her debt, and she had no interest in the same; she did not get one cent from the signing of said note, and all the proceeds of the same went to her husband. The property levied on was not in any way part of the consideration for the signing of said note. She would have appeared and pleaded to the merits of the suit had she known before that it was pending against her, and she could have readily shown that she was a surety on said note, which was in reality a debt of her husband. A motion to dismiss the affidavit of illegality was sustained, on the ground that it was insufficient in law.
   Smith, J.

The affidavit of illegality in this case contained all the material allegations required by law, and therefore the court erred in dismissing it.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

Story & Story, for plaintiff in error,

cited: Park’s Cgde, §§ 5305-7, 5311, and annotations.

TF. R. Smith, contra,

cited: 59 Ga. 467; 14 Ga. App. 790; 15 Ga. App. 162; 49 Ga. 579; 55 Ga. 677; 101 Ga. 763; 63 Ga. 481-3; 99 Ga. 145.  