111 Ga. 439 | Ga. | 1900
Mrs. Cooley filed a petition and presented the same to the judge of the superior court of the Atlanta circuit, in which she alleged that Mrs. Abbey had made a fraudulent sale of all of her property, and prayed that an attachment should issue under the provisions of the Civil Code. After considering the same, the attachment was ordered to issue, and was levied on certain furniture and household goods as the property of the defendant in attachment. Subsequently Mrs. Abbey, under the jirovisions of the Civil Code regulating attachments of this character, filed a petition praying that the levy of the attachment so issued should be removed. On a hearing the prayers of this last petition were denied. No further steps -were taken until the case was called for trial in the superior court. It was then insisted on the part of Mrs. .Abbey that the petition for removal which had been filed was a traverse of the grounds of the attachment and raised an issue
The attachment which was issued in the case at bar, under the order of the judge of the superior court, was dated September 29, 1897, and was returnable to the March term, 1898, of the superior court of Fulton county. The petition to remove the attachment was filed in the office of the clerk of the superior court of Fulton county on the 25th of October, 1897. This petition to remove, in terms, denied all the material allegations of the petition for attachment, that is to say, it expressly denied the truth of the ground upon which it was sought to have the attachment issue. The prayer to remove the attachment was refused at a hearing prior to the March term of the court. It nevertheless became apart of the record in the case, and, besides expressly denying that the ground of the attachment was true, this petition closed with a prayer that it should be used and considered as a traverse of the ground of the attachment. While it is admitted that the defendant might traverse the truth of the plaintiff’s affidavit on which the attachment issued, it is contendéd that such traverse must be separately made and filed at the term to which the attachment is made returnable; and it seems to us that this is very much the better mode of practice, and that the contemplation of the statute in relation to filing a traverse is that there shall be a separate denial of the truth of the affidavit on which an attachment is issued, filed at the return term; but, nevertheless, the object of the statute is to give to a defendant the right of having an attachment which has issued against him dismissed, if the grounds upon which it issued are not true in fact; and we do not see, in this case, how any damage accrued to the plaintiff because- of the fact that a traverse was filed in advance of the term to which the attach-
Judgment affirmed. .