144 Ga. 348 | Ga. | 1915
Several of the grounds of the affidavit of illegality were aimed at certain irregularities in the proceeding. The affidavit made to obtain an attachment alleged that E. E. Stone and L. V. Stone, doing business under the firm name and style of Stone & Son, were indebted to the plaintiff, Askew, in the sum of $425, and that Stone & Son were “causing their property to be removed beyond the limits of the county and State.” The attachment bond given by the plaintiff was payable to E. E. Stone and L. Y. Stone. The writ of attachment commanded the sheriff to seize so much of the property of E. E. Stone and L. Y. Stone as would make the sum of $425. This was levied upon certain property, the entry not stating as whose property it was levied on. A replevy bond was given, which named E. E. Stone and L. Y. Stone as principals, and E. M. Melvin and J. P. Whittaker as sureties. It recited a levy on the property as that of E. E. Stone and L. Y. Stone. It was signed, E. E. Stone & Son, E. M. Melvin, and J. P. Whittaker. The attachment was made returnable to the December term, 1910, of Calhoun superior court, and this was recited in the replevy bond. The plaintiff filed a petition which partook somewhat of the nature of a declaration in attachment, and somewhat of the nature of an ordinary suit on a note, but which was termed on its face a “declaration in attachment,” and recited that it was filed at the first term of court, though it also prayed process against E. E. Stone and L. Y. Stone and Stone & Son, and for judgment against them and against the sureties on
It was contended that in the report of the case cited it did not appear that the papers in the attachment proceeding indicated on their face the court to which they were returnable, while in the present case this did appear. We do not think that this affected the decision in that case. In fact an examination of the record on file in the office of the clerk of this court shows that the attachment papers, including the replevy bond, in that case did state the court- to which the attachment was made returnable, and we can not assume that the court overlooked that fact. Nor can we concur with the argument of counsel by which they sought to distinguish that case from this.
We must treat the declaration or petition which was filed either as a declaration in attachment or as a common-law suit upon the note, or as neither, and can not treat it as both, although upon certain conditions prescribed by statute the plaintiff in attachment may proceed for a common-law judgment. If it was not a declaration in attachment, then apparently none was filed, and there could be no judgment in attachment. If it was a declaration in attachment, the plaintiff can not obtain by it all of the benefits of a common-law action returnable to the next term of court, filed in due season in advance thereof, with allegations as to jurisdiction, prayers for process, and the incidents appertaining to such a suit. Process was prayed against E. E. Stone, L. V. Stone, and Stone & Son, and was served on them. None was prayed against the sureties on the replevy bond, and they were not served; yet judgment was taken against the defendant and the sureties above named, for the amount of the note. The affidavit of illegality was filed by one of the sureties upon whose property it was alleged that a levy had been made. The petition or declaration termed itself a “declaration in attachment,” and we will, so treat it. Considered as an ordinary declaration in attachment, the filing of it and service upon the defendants might perhaps be equivalent to service of the statutory notice, but (under the decision cited above) would not fix the jurisdiction in the court of a county which
It was accordingly not erroneous to overrule the demurrer as to the grounds of the affidavit of illegality which attacked the jurisdiction of the superior court of Calhoun county.
There were twenty-four grounds of the affidavit of illegality. Some contained repetitions in various forms of the matters above discussed. Some included in one ground reference to several matters. None of them were meritorious except in so far as they attacked the judgment for want of jurisdiction in Calhoun superior court to render it. All the rest of the allegations, except those relevant to the subject of jurisdiction, should be stricken (including the plea filed after judgment); and direction is given accordingly. As to the allegations attacking the jurisdiction of Calhoun superior court, the demurrer was properly overruled. Costs of bringing the case to this court and in this court are awarded in favor of the plaintiff in error.
Judgment affirmed, with direction.