Kimball v. Nicol & Davidson

58 Ga. 175 | Ga. | 1877

Bleckley, Judge.

In attachment, founded on contract, where there has not been notice, replevy, or appearance, to give the court jurisdiction over the defendant’s person, and the plaintiff has, nevertheless, procured the court, without the intervention of a jury, to render a general judgment, such judgment is so far prima facie void as that the defendant may, at a subsequent term, file an issuable plea, on oath, to the action, without first moving to set the judgment aside. And while such plea is undisposed of, the plaintiff cannot ignore the appearance and pleading of the defendant, and have the judgment changed, by amendment, into a special judgment against the property attached. Defendant, by the express terms of the Code, section 3310, may appear and malee his defense at any time before final judgment is rendered against him; and so long as a judgment, obtained in his absence and without notice to him, is so defective that a sale under a fi. fa. conforming to it would be void, (52 Ga. 389,) it cannot be regarded as absolutely final, though it may not be absolutely void for all purposes.

In the present case, when the plaintiffs in attachment obtained their original judgment, they were entitled to a judgment against the property attached. Code, section 3328. But they took no judgment against that. They took a general judgment against the debtor in personam. This judgment was no absolute finality to the attachment proceeding. It was a legal non sequitv/r. The whole logic of the record had to be revised, and a different conclusion drawn. Before this revision took place, the premises were materially changed. The defendant appeared and filed an issuable plea on oath. After this had occurred, the plaintiffs were entitled to a general judgment in personcmn, if the plea proved to be untrue. If it proved to be true, as it simply set up a discharge in bankruptcy, and not under circumstances which dissolved the attachment, the plaintiffs would be entitled to a judgment for the enforcement of the attachment lien — substantially the same judgment which they should have taken at first, to-wit, a judgment against the property attached. But the debtor, if he came in time, is entitled to have the truth of his plea settled, and to that end, is entitled to have the opportunity of proving it true. The disposition made of it may be of consequence in another suit on the same debt, should any such be brought against him in the future. Was he too late to appear and plead? This is the sole question. Section 3310 of the Code holds the ease open for appearance and defense until final judgment is rendered; and section 3328 declares, in effect, that the final judgment shall be against the property attached, and against that only. Was there such a judgment before the plea was filed ? The record answers, no. It was in the nature of a final judgment, but was so far from being final, that a sale under an execution conforming to it would have been void. 52 Ga., 389. Perhaps, if no plea had been filed, it might have been amended and thus made final — -35 Ga., 207. But a plea was filed, and, as it was in time, the plaintiffs could not flank it by making a material addition to a record which recited the absence of an issuable defense. Can it be believed that a plea of non estfacbwm, or of payment, could be thus evaded ? While a plea of discharge in bankruptcy stands on lower moral ground, the plea is, nevertheless, sufficient to raise an issue for trial — 44 Ga., 161. The case is converted from a proceeding in rem into a proceeding in personam. Whatever judgment shall finally be rendered, will be a judgment between party and party, and will bind both parties for all time, and in all jurisdictions. If the debtor should not make good his plea, the judgment will be the same, in extent, as the one originally rendered; if he should make it good, it will be little, if any, different, in extent, from that which was sought to be wrought out by the proposed amendment. But, in either event, the matter of the plea will be disposed of; and to have it disposed of is the debt- or’s right.

Judgment reversed.