Affidavits 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.
§ 9-13-125.Affidavit of illegality — When and how amendable
Chapter 13. Executions and Judicial Sales · Article 6. Illegality · Last amended 1933 · Last verified July 17, 2026
In one sentenceO.C.G.A. § 9-13-125 lets a court, on motion and leave granted, permit an affidavit of illegality to be amended instanter to add new and independent grounds, but only if the defendant swears he did not know of those grounds when the original affidavit was filed.
Full Text of § 9-13-125
Plain-English Summary
An affidavit of illegality is not always complete the first time it is sworn out. This section lets the defendant fix that, but only through the court, and only within limits meant to keep the process honest.
Two conditions have to be met. First, the defendant needs a motion and the court’s leave — amendment is not automatic just because the defendant wants to add something. Second, and more pointed, the defendant must swear that the new grounds were unknown at the time the original affidavit was filed. That oath requirement is the section’s real work: it blocks a defendant from holding back weaker or riskier grounds at the outset and adding them later as leverage, or from treating amendment as a way to draw out the proceeding with grounds that were available all along.
Once those conditions are satisfied, the amendment happens instanter — immediately, without a fresh filing or a new proceeding started from scratch. The amended affidavit carries the new and independent grounds forward into the same pending matter.
Frequently Asked Questions
Can a defendant add new grounds to an affidavit of illegality after it has already been filed?
Yes, but only on motion and with the court’s leave, and only if the defendant swears the new grounds were unknown when the original affidavit was filed.
Is a defendant free to amend the affidavit without asking the court?
No. Amendment requires a motion and leave of court under this section.
What must the defendant swear to add a new ground by amendment?
That he did not know of the new and independent grounds at the time the original affidavit of illegality was filed.
Can a defendant amend to add a ground he knew about from the start but left out?
No. The oath requirement is designed to block exactly that — amendment is limited to grounds truly unknown at the time of the original filing.
What does “amendable instanter” mean in this section?
It means the court can allow the amendment on the spot, folding the new grounds into the pending affidavit rather than requiring a separate filing or a new proceeding.
Amendment History
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.
Source & verification. Section text and amendment history are
reproduced verbatim from the Official Code of Georgia Annotated, published by the
Official Code of Georgia Annotated, Georgia Code Revision Commission / LexisNexis. Last verified July 17, 2026.
· Official source
Also known as: amend affidavit of illegality georgianew grounds affidavit of illegality georgiaamendable instanter georgia illegality