Irvin v. Howard

37 Ga. 18 | Ga. | 1867

Walker, J.

1. In Neal vs. Bookout, 30 Ga. Rep., 40, this Court decided that the preliminary issue in relation to the truth of the ground upon which an attachment issued, must be tendered at the return term of the attachment. This was authority for the Court below to strike out the traverse made at the trial of the case on appeal. The tender of this issue came too late.

2. A motion was made to dismiss the attachment upon various grounds; the first of which was, because the affidavit of the plaintiff was in the alternative as to the grounds, the statement being that “ the defendant is actually removing, or is about to remove out .of said county.” The act of 1856, p. 25, codified the attachment laws of this State, and its provisions have been substantially incorporated in the Rev. Code; Sec. 3199 et seq. The act of 1856 says, “Process of attachment may issue in the following cases :

1st. Where the debtor resides out of this State.

2d. When he is actually removing, or about to remove without the limits of any county.

3d. When he absconds,” etc.

The affidavit in this case is in the language of the statute, and seems to be considered by it as one ground. “ 2d. When he is actually removing, or about to remove without the limits of the county.” Whether this affidavit would have been sufficient under the old law or not, it is unnecessary now to determine. “ Formerly, the attachment laws were construed strictly; one of the provisions of which was, that any attachment sued out and returned, otherwise than the act itself prescribed, should be void. The late law by providing that a substantial compliance with its provision, shall be sufficient, has intentionally overturned the old doctrine.” Force & Co. vs. Hubbard, 26 Ga. Rep., 290. The affidavit in this case is in the language of the statute, and is therefore valid.

3. Suppose the affidavit should contain two grounds named in the statute, would that vitiate the attachment? Why should it do so ? I see no good reason for any such result. The plaintiff swears to such facts as entitle him to the attachment, and there is no reason why the attachment should be dismissed even if another ground had been added.

4. The second objection of the defendants to the attachment, and which was sustained by the Court, was that the amount of the debt sworn to was $3,262.51, and the bond was for $6,524.02, being one dollar less than double the sum sworn to. A substantial compliance in all matters of form in cases of attachment, is all that is necessary, Rev. Code, Sec. 3215; and the plaintiff in attachment shall have the right to amend his attachment or bond or declaration, as in other cases at common law. Rev. Code, Sec. 3240. The plaintiff then, with the assent of his sureties, might have amended his bond, and the Court should have allowed him to do so rather than dismiss his case. See Oliver vs. Wilson, 29 Ga. Rep., 642.

5. The third ground of objection was, that the declaration was not filed at the first term; or rather, the declaration did not describe the cause of action according to the terms of the affidavit. A declaration was filed in the case at the proper time, and jf wrong, it was amendable as in other cases at common law. Rev. Code, Sec. 3240.

6. The affidavit need not set forth the cause of action; that is left for the declaration to be subsequently filed fin the case. Dobbs vs. The Justices, &c., 17 Ga. Rep., 630. To entitle a party to an attachment, he need make an affidavit only, that the debtor has placed himself in a condition to be attached, and of the amount claimed to be due. Rev. Code, See. 3200.

7. The party had a right to elect to which Court he would make his attachment returnable. If he chose to make it returnable to the next term of the Superior Court, he could do so, though a term of the Inferior or County-Court might intervene. “ An attachment may be made returnable to the next term of the Superior or Inferior Court of the county, at the option of the party sueing out the same.” Warret vs. Corbet, 13 Ga. Rep., 441.

8. Where an attachment has been levied upon the property of the defendant, it may be replevied by his giving bond with good security to pay the plaintiff the amount of the judgment and costs that he may recover in said case; and judgment may be entered up against the defendant and his securities upon said bond, as in cases of security upon appeals; Rev. Code, Sec. 3243. The bond given to replevy the property levied on in this case, contained the conditions named above, and in addition thereto, bound Howard, the principal, to appear at said term of said Court, and abide by and perform the order and judgment of the Court in the premises. The bond was really a bond taken in accordance with the attachment act of 1779, Cobb’s Dig., 71, and also imposing the obligations contained in Sec. 3243 of the Rev. Code. Of course there can be no objection to the bond so far as it is in accordance with the Code; and in Cole vs. Reilly, 28 Ga. Rep., 431, it was held that a replevying bond in attachment, conditioned that the defendant shall appear, and abide by, and perform the judgment in the attachment, binds him not only to appear, but also to pay the judgment, if judgment goes against him. This is precisely what the Code requires, and was the measure of the liability of the signers of said bond, no more, no less. The legal effect of this bond was precisely the security which the Code intended the plaintiff should receive on the property which had been levied on at his instance, being restored to the defendant in attachment. The Court,* therefore, erred in holding the bond invalid.

9. The sureties having become liable to pay the judgment which the plaintiff should recover against the defendant as “ securities upon appeals,” were bound, notwithstanding the negroes levied upon had been emancipated. The obligation of the parties to said bond was not to deliver the property to satisfy such judgment as might be recovered in the case, but to “pay the said plaintiff the amount of the judgment and costs that he may recover in said case.” The consideration of the bond was the delivery of the negroes levied on by the sheriff to Howard, the principal, and that consideration was received. The rights of the respective parties then became fixed. The consequences of the death or emancipation of the negroes, could only then affect the defendants, not the plaintiff.

10. As to the one bond being for three cases, there is nothing in that exception. The property levied on was delivered to Howard upon the faith of this bond, which made defendants liable as “ securities upon appeals,” and bound for the amount of the judgment and costs which should be recovered in each case.

The judgment of the Court dismissing the attachment must be reversed.