Hendrix v. Cawthorn

71 Ga. 742 | Ga. | 1884

Jackson, Chief Justice.

Two questions are made by this record: First, can a judgment in personam be rendered against a defendant in attachment, though the attachment itself be dismissed, when service is had or notice given, under section 3309 of the Code; and secondly, is service or acknowledgment of service by the defendant’s attorney sufficient notice to authorize such a udgment ?

Both questions are answered by the case of Buice vs. The Bowman Gold and Mining Company, 64 Ga., 769, in the affirmative. That case decides that either the replevy of personalty or the acknowledgment of service by the attorney at law “ gave the attaching creditor the right to a general judgment,” and that “ the attachment may fall, and yet the action proceed, if notice has been given, or even property replevied;” citing Code, sections 3309, 3319, 3328, and 44 Ga., 454. Indeed, the first section of our Code cited, section 3309, itself concludes the point that the general judgment may be rendered where notice is given, though the attachment may have fallen. Its language is: “ No declaration shall be dismissed because the attachment may have been dismissed or discontinued, but the plaintiff shall be entitled to judgment on the declaration filed, as in other cases at common law, upon the merits of the case.”

And section 3337 of the Code is equally as explicit, that “ the defendant may acknowledge service or waive process, provided the same be in writing, signed by the defendant or some one authorized by him.” The attorney is authorized, unless the contrary appears by competent proof. 36 Ga., 108; 39 Ib., 394; 64 Ib., 769.

But, as if to clinch this case beyond'doubt or cavil, the attorney took out letters of administration on the estate of the defendant, and was made a party in the case by his own consent, and the personal or general judgment was rendered against him as such administrator; so that the defendant who moved to arrest the judgment was the identical person who “ acknowledged due and legal service on the declaration, and waived all further notice, copy, service and process.”

Surely he cannot say in arrest of judgment that he had none. The court below could not do-otherwise than deny the motion to arrest the judgment.

Judgment affirmed.