Johnston & Co. v. Smith & Chafee

83 Ga. 779 | Ga. | 1889

Simmons, Justice.

It appears from the record in this case that "W. W. Smith made affidavit that John Henry Johnston & Co. were indebted to Smith & Chafee, a firm composed of deponent and George K. Chafee, in the sum of sixty dollars, and that said Johnston & Co. resided without the limits of this State. On this affidavit an attachment was issued against J. H. Johnston & Co. returnable to a magistrate’s court. Johnston & Co. appeared' in the magistrate’s court and filed a plea of the general issue, “ reserving the right of exception to the attachment proceeding subject thereto.” The magistrate rendered judgment in favor of the plaintifis, and the defendants took the case by appeal to the superior court, where it was heard by consent by .the judge without a jury. Defendants there moved to dismiss the attachment on the following grounds: 1. Because no person, natural or artificial, was named as the debtor in the affidavit for attachment. 2. Because the individuals comprising John Henry Johnston & Co. were not named. 3. There was no sufficient description of the defendants in the affidavit for attachment as would authorize the issuing of the attachment. 4. Because the attachment did not follow the affidavit, the affidavit having described the debtor as John Henry Johnston & Co., and the attachment having issued against J. H. Johnston & Co.

The court overruled this motion to dismiss, and after hearing the evidence on the merits of the case, rendered judgment in favor of the plaintiffs. Defendants filed their bill of exceptions, alleging error in overruling this motion to dismiss, and error in the finding of the judge in favor of the plaintiffs. No motion for a new trial- was made in the case.

1. We think the court was right in overruling the motion to dismiss the. attachment. There was at least one debtor set out in tbe affidavit and attachment, to wit, John Henry Johnston, or J. H. Johnston; and while it is better practice to set out the names of all the persons who compose the firm, still-if it is not done it does not render the attachment void; nor does the fact that the affidavit described the firm as John Henry Johnston & Co., and the attachment issued against J. H. Johnston & Co., render it void; and this is especially true after the defendants have come into court and pleaded to the merits of the case, as was done in this case. For a full discussion of the points made in this motion to dismiss, see the ease of DeLeon v. Heller, Hirsh & Co., 77 Ga. 740. Also, Hines & Hobbs v. H. I. Kimball & Co., 47 Ga. 587.

2. The case having been submitted to the court without the intervention of a jury, the finding of the court will be treated here the same as if it was a verdict by a jury. In this case there was sufficient evidence to sustain his finding. Phillips v. Adair, 59 Ga. 370.

Judgment affirmed.