Buice v. Lowman Gold & Silver Mining Co.

| Ga. | Feb 15, 1880

Jackson, Justice.

The sheriff levied a fi. fa. in favor of the plaintiff in error against the Lowman Silver Mining Company, on a tract of land in Hall county as the property of defendant in fi.fa. The land was claimed by the Lowman Gold and Silver Mining Company, and when the issue was joined and the parties went to trial, the court dismissed the plaintiff’s levy, and that is the error complained of, made in the shape of a motion for a new trial.

1. Whilst we cannot exactly see why a motion for a new trial was made, as there was no verdict rendered to be set aside, yet the point is made that the levy should not have been dismissed, and that is a question for reyiew here.

2. Ought the levy to have been dismissed on the grounds appearing of record ?

Those grounds are, first, that the judgment is for eight dollars too much, more than declared 'for. Secondly, that it is a general judgment to which the party was not entitled, the judgment being based upon an attachment, and thirdly, because the affidavit in attachment is only for $192.50, the bond is double that sum, and in such cases at least the excess of the verdict and judgment over the sum attached for is fatal.

If the judgment be general, the excess is a mere irregularity. 8 Ga., 114; 14 Ib., 589 ; 33 Ib., 161; 33 Ib., 596; 46 Ib., 454.

3. The defendant replevied at least the personalty levied by attachment and gave bond for condemnation money, and by attorney at law acknowledged service. These or either of these acts gave the attaching creditor the right to a general judgment. Code, §§3309, 3319, 3328. The attorney at law had the power to acknowledge service, at least until the contrary appeared. Code, §3337; 36 Ga., 108 ; 39 Ib., 394.

The judgment therefore is general and was legally made so. If general, the claimant could not attack it collaterally for the irregularity of being eight dollars over the amount declared on. 20 Ga., 94 ; 47 Ib., 205 ; Tharp vs. Tumlin, Pollard vs. King, last term, not yet reported. So that it was wrong to dismiss the levy because the judgment was too large — where the court below put the ruling.

4. Nor should it have been dismissed on either of the other grounds. Claimant’s counsel contended that the attachment feature should appear in the judgment, even if general, in order to have the^. fa. follow it and to designate the property attached to be first levied, under sections 3328 and 3329 of the Code; but we think not. The attachment may fall, and yet the action proceed if notice has been given, or even property replevied, perhaps — Code, §3309; 44 Ga., 454. And those sections cited, 3328-9, au thorize a general judgment without any addition thereto, or modification thereof, so that after notice and appearance, though affidavit and bond were so irregular that attachment fell, the suit by the declaration survived.

On the whole, it is clear that the judgment is not void, but valid, the fi.fa. followed it and should have carried the case to the jury for tidal on the facts. The judgment is reversed because the levy was dismissed.

Judgment reversed.