15 Ga. App. 561 | Ga. Ct. App. | 1914
The Roberts, Johnson & Rand Shoe Company and the Friedman-Shelby Shoe Company each sued Johnson & Son in the city court of Oglethorpe; one of the suits being upon a promissory note, and the other upon an open account. Thereafter the plaintiffs sued out attachments, under section 3226 of the Civil Code, charging that the defendants had made a sale of their stock of merchandise in bulk without comptying with the statutory requirements. Hpon the levy of this attachment the attorney of the defendants paid to the sheriff who levied the attachments certain sums of money which that officer accepted, as sheriff, “in full and complete settlement of said attachments, as to principal, interest, and costs.” The sheriff offered to the plaintiff’s attorney the money so received upon each attachment, but he declined to accept it, claiming, as to the case of Roberts, Johnson & Rand Shoe Company, that there was a deficiency of $2.06 in the interest, and that in the case of Friedman-Shelby Shoe Co. there "was a deficiency of $5.04. At the trial term the defendants filed in each case an amendment to their plea, in the nature 'of a plea in abatement, setting up the payments made to the sheriff. The sheriff testified in each case as a witness for the defendants, stating that Mr. Jule Felton, attorney at law for the defendants, paid him the sum of $203.63 in the case of Roberts, Johnson & Rand Shoe Co., and $316.63 in the case of Friedman-Shelby Shoe Co. and that he accepted these sums in full and complete settlement of the principal,
The question presented in each case is whether the court erred in refusing a new trial; or, to state the question more concretely, were the defendants, under the facts stated, liable for either costs or attorney’s fees in the suits now before us? While it appears from certain certificates of the sheriff that perhaps the cases have both been settled and, therefore, that the questions presented are moot, still as to this we will give the plaintiffs in error the benefit of the doubt, by passing on the questions raised by the bill of exceptions. Section 5071 of the Civil Code provides that “In all cases where the plaintiff has commenced suit for the recovery of a debt, and the defendant, during the pendency of such suit, shall become subject ,to attachment, the plaintiff, upon complying with the provisions of this code in relation to the issuing of attachments, may have an attachment against the defendant, and all the proceedings in relation to the same shall be as hereinbefore prescribed in relation to attachments where no suit is pending. And a satisfaction of the judgment in the common-law action shall satisfy the judgment in attachment, and a satisfaction of the judgment in attachment shall satisfy the judgment in the common-law action.” This section seems to make an exception to the usual rule that “'no suitor is allowed to prosecute two actions . . at the same time, for the same cause, and against the same party” (Civil Code, § 4331). Starting with the proposition that under the provisions of section 5071, supra, if a defendant places himself in a position in which he becomes subject to attachment, an at
Since the action of the sheriff in accepting the money in settlement of the two claims was not binding upon the plaintiffs, unless they chose to accept, ip. full settlement and satisfaction of their demands, the sums collected by the sheriff, and since it appeared
We find no error in the judgment of the trial judge.
Judgment affirmed.