169 Ga. 555 | Ga. | 1929
W. H. Coker sued out an attachment on May 31, 1928, against Mrs. Clemmie King Taylor, based’ on an alleged indebtedness of $528.09. The alleged ground of the attachment was that defendant was a non-resident of the State. The attachment was made returnable to the July term, 1928, of Floyd superior court and was levied by the service of a summons of garnishment on John M. Graham. At the return term the plaintiff'hied his declaration in attachment, in which he sets up no indebtedness due him by the defendant, but alleges that T. J. King, the father of defendant, is indebted to him in a certain sum; that this debt is in judgment,
"Within the time provided by law the defendant made her special appearance-for the sole purpose of pleading to the jurisdiction of the court. She sets up that the record discloses that she is not indebted to plaintiff in any sum; that notwithstanding the affidavit made as the basis of the attachment because of an indebtedness due by defendant to plaintiff, the plaintiff’s declaration discloses that defendant is not indebted to plaintiff, and the cause of action alleged against defendant in the declaration is not based on the alleged indebtedness in the attachment affidavit. She insisted further that the record showed on its face that the court had not acquired jurisdiction of her and the purported cause of action alleged in plaintiff’s declaration, as she had not been served in the case, had not pleaded thereto, and had not done any other thing or act that would constitute a general appearance so as to give jurisdiction to the court for the purpose of proceeding with the action as set forth in the declaration in attachment. Defendant pleaded further that no declaration in attachment, based on the alleged indebtedness set forth in the attachment proceeding, had been filed, .and therefore the proceeding should be dismissed. When the case came on for hearing, the plaintiff offered an amendment, praying that T. J. King and the brothers of the defendant be made parties. The court disallowed this amendment and dismissed the case; and the plaintiff excepted.
The defendant contended that the court never acquired such jurisdiction of her or any of her property as would be the basis for the granting of the relief prayed for. The debt alleged in the plaintiff’s affidavit as being the basis for the attachment proceed
The allegations in the declaration of the plaintiffs right to an equitable attachment -in nowise take the place of a showing in the declaration that the defendant was the debtor of the plaintiff. By amendment, the plaintiff sought to make T. J. King, Carl King, and J. S. King parties to the action. The amendment was objected to upon the ground that it sought to add new and distinct parties, and this objection was sustained and' the amendment was refused. Whether in any case of a statutory attachment, such as appears in the present case, new and distinct parties may be added, we do not now decide; but we are of the opinion that these new parties, under the facts alleged, could not be added so as to give the court jurisdiction of the original defendant. In Tennessee Fertilizer Co. v. Hand, 147 Ga. 588 (95 S. E. 81), it was said: “The remedy which the law gives for the enforcement of a right does not necessarily embrace a right on the part of the complaining party to choose his own forum in which to litigate his cause. The defendant also is interested in the question of the jurisdiction in which an alleged right is to be urged against him, and is entitled to have the controversy adjudicated in a venue which the law provides for. The venue of suits in this State, legal and equitable, is controlled by constitutional and statutory provisions. The mere fact that there is property belonging to a defendant within its territorial jurisdiction does not authorize a court of equity to seize it, the plaintiff having no lien thereon or present interest therein; and its seizure under such circumstances will not confer upon the court a jurisdiction it did not already possess. To the contention that it may be seized under an equitable attachment, analogous or equivalent to an attachment at law, the reply is that there is no provision in our law for the issuance of an equitable attachment. The writ of attachment is purely a creature of statute, and is confined to common-law actions. See Bucyrus Co. v. McArthur, 319 Fed. 366; Ayers v.
It follows that the court properly dismissed the case.
Judgment affirmed.