Graves v. Strozier

37 Ga. 32 | Ga. | 1867

Warner, C. J.

1. The error assigned to the judgment of the Court below in this case, is the overruling the motion to dismiss the attachment upon the several grounds specified therein. First, that there was no equity or action pending in the Court, upon which to predicate the attachment. By the 3212th section of the Revised Code, it is declared, that in all cases where a plaintiff has commenced, suit for the recovery of a debt, and the defendant, during the pendency of such suit, shall become subject to attachment according to the provisions of the Code, such plaintiff shall be entitled to an attachment in the same manner as if no suit is pending. Had there been a suit commenced in the Court below in legal contemplation at the time the attachment was sued out ? Suits at common law in this State are instituted by petition to the Court, signed by the plantiff or his counsel, plainly, fully and distinctly setting forth his charge or demand. Upon such petition the Clerk shall endorse the date of its filing in office, which shall be considered the time of the commencement of the suit; Revised Code, sections 3256, 3257. The attachment was taken out the day after the petition had been filed in the clerk’s office, which was the commencement of the suit; in other words, the plaintiff had commenced suit for the recovery of his demand against the defendant at the time the attachment was sued out, within the meaning and provisions of the 3212 section of the Code before cited.

2. The second, third and fourth grounds will be considered together. By the 3210 section of the Revised Code, in all cases of money demands, whether arising ex contractee or ex delicto, the plaintiff is entitled to sue out an attachment, when the defendant places himself in such a situation as to authorize him to do so, and this provision of the Code was not intended to apply to executors and administrators alone. The plaintiff in attachment claims money from the defendant, as damages for the injury sustained; it is a money demand. Morton vs. Pearman, 28th Ga. Rep., 323. The affidavit states the amount of damages claimed from the defendant, and is a substantial compliance with the statute. Harrill vs. Humphries, 26 Ga. Rep., 514. In our judgment, a suit had been commenced in contemplation of law, at the time the attachment was taken out by the plaintiff, the attachment was authorized to be issued under the law in this case, it being for a money demand, and the affidavit of the plaintiff was sufficient to authorize the attachment to be issued.

Let the judgment of the Court below be affirmed.