117 Ga. 510 | Ga. | 1903
The Irish-American Bank procured an attachment to-be issued against James MeAndrew, of Richmond county, Ga., upon the ground that he had conveyed his property liable for the payment of his debts for the purpose, of avoiding the payment of the same; and it was levied upon a certain house and lot in the city of Augusta, as the property of the defendant. Richmond county is, in the Augusta judicial circuit, and the judge of that circuit being absent from the State, the petition for attachment was presented to the judge of the Eastern circuit, who ordered the attachment to issue. After the levy the attachment was returned to the superior court of Richmond county, and at the appearance term therefor of' that court, and before any declaration in attachment had been filed, the defendant filed a written motion to dismiss the same, upomthe ground that the petition therefor was presented to the judge of the Eastern circuit, who took jurisdiction in the matter, instead of to-the judge of a circuit adjoining that in which the defendant resided; and, subject to this motion, the defendant traversed the grounds of the attachment. The motion to dismiss contained also another ground, which, however we shall not deem it necessary to consider. Subsequently, during the same term of the court, the plaintiff filed its -declaration in attachment. When the case came on for trial at the next term of the court, the defendant “insisted upon his motion to dismiss the attachment, and at the same time orally moved to dismiss the declaration, on the ground that, the attachment being void, there could be no personal judgment against the defendant and he further insisted that, the attachment being void, there could be no personal judgment against the defendant, notwithstanding the notice of the attachment and the declaration thereon.” Each of these motions was overruled, and the debt due by tbe defendant-to the plaintiff being evidenced by an unconditional contract in writing and no issuable defense being filed on oath, the court entered up a general judgment in favor of the plaintiff against the defendant. The plaintiff not asking for a judgment on the attachment, there was no trial of the traverse. The defendant excepted to the judgment against him entered up by the court, to the over
We think the court erred in overruling the motion to dismiss the attachment. It was contended here that the absence of the judge of the Augusta circuit did not amount to his disqualification, but this question does not appear to have been distinctly raised by the motion to dismiss the attachment; and even if the motion can be properly treated as raising this question, we do not deem it necessary to consider it. The Civil Code, § 4543, which authorizes the issuance of attachments against fraudulent debtors upon the grounds therein stated, upon one of which the attachment in the present case was based, provides that in case of the •disqualification of the judge of the circuit wherein the debtor resides, the creditor seeking the attachment may'petition “the judge of any adjoining circuit ” for an attachment against the property' of ■such debtor liable to attachment; and no provision is made for presenting the petition to the judge of- any other circuit. It is to be presumed that the legislature used the word “adjoining” advisedly arid with some purpose in view. If the General Assembly had intended that in case of the disqualification of the judge of the •circuit in which the debtor resides, the judge of any other circuit could take jurisdiction and issue the attachment, it would have been a very simple matter to have so declared. Indeed, as we •shall presently show, if this had been the legislative intention, it would have been unnecessary to' make any provision to this effect in the statute providing for attachments against fraudulent debtors. When, instead of declaring that in such a case the petition may be presented to the judge of any other circuit, the General Assembly provided that the creditor may petition the judge of an adjoining circuit, it is to be presumed that the intention was that jurisdiction shorild be exercised only by the judge of an adjoining circuit. If, as ■contended by counsel for the defendant in error, the provision that the creditor may apply to the judge of an adjoining circuit is merely directory, why should language of limitation have been used ? Why use a word of limitation, if no limitation was intended ? If the legislative purpose was that the petition might be presented to the judge of any circuit in the State, other than the one of the debtor's residence, there was no sensible reason for using the word “adjoining.” In support of his position, counsel for the defendant
If it were necessary to discover- the purpose of the legislature in thus limiting the jurisdiction, this might be done by considering the provisions of sections 4545 and 4546, which are codified from the same act. Section 4545 provides that the judge to whom the petition for attachment is presented “ may, if he deem it more proper ■under the circumstances of the case as presented to him, before granting such attachment, appoint a day on which he shall hear the petitioner, and the party against whom an attachment is prayed
In Hickson v. Brown, 92 Ga. 225, it was held that where a defendant traversed the truth of the affidavit in relation to the ground upon which the attachment issued, and appeared in person at the trial to maintain his traverse, there was no error in entering a general judgment upon the verdict rendered against him. Lumpkin, J., in the opinion, said: “ General judgments may be rendered in attachment cases when the plaintiff gives notice in writing to the defendant of the pendency of the attachment'and the proceedings thereon, as provided by section 3309 of the code; or, when the defendant replevies the property, as provided in section 3319 of the code; or ‘ when he has appeared and made defense by himself or attorney at law,’ as provided in section 3328. An examination of all these sections will show that it is the purpose and spirit of the law to allow a general judgment against a defendant in an attachment case when he has notice of the suit and an opportunity to make a defense.” King v. Randall, 95 Ga. 449.
As the fact that the attachment was void was no ground for dismissing the declaration, it is no ground for attacking the judgment rendered thereon.
As the plaintiff neither asked for nor obtained a judgment upon the attachment, the error committed in overruling the motion to dismiss the attachment does not require a reversal of the judgment .rendered.
Judgment affirmed.