McReynolds v. Colclough, 146 Ga. 696

McReynolds v. Colclough

146 Ga. 696 | Ga. | 1917

Evans, P. J.

(After stating the foregoing facts.)

1. The attachment process, being unknown to the common law, should be strictly construed and pursued; especially as against non-resident debtors. Mills v. Findlay, 14 Ga. 230. Attachment lies only for money demands, though such may spring either from contract or tort. Civil Code (1910), § 5069; Monroe v. Bishop, 29 Ga. 159. The process of attachment against non-resident debtors and the attachment against fraudulent debtors are very dif*699ferent proceedings. The former issues as a matter of course, upon affidavit made before a justice of the peace, or other judicial officer authorized by statute, that the amount claimed is due and that the defendant is a non-resident, upon giving the statutory bond. Civil Code (1910), §§ 5055-5060. An attachment against a fraudulent debtor is issued only by the judge of the superior court, or by his authority on petition. Civil Code (1910), § 5088 et seq. The procedure is totally dissimilar. In the instant case the plaintiff obtained a verdict against the defendants for a stated amount, and also that the transfer of the stock of the Crystal Springs Bleaehery Company by J. H. McBeynolds to his wife was void. This verdict is unauthorized. The court did not have jurisdiction over the cancellation of the transfer of stock as being fraudulent, for the reason that neither of the defendants was served with notice of the suit, and relief of this kind can be afforded only by a judgment in personam. In an attachment like this, only a judgment for the money demand can be rendered, to be executed by a sale of the attached property. Equitable relief in personam can not be administered where the court has no jurisdiction over the person of the defendant.

2. The verdict was returned against all of the defendants. The attachment ran against all these defendants as being indebted to the plaintiff, and in his petition he prayed for a judgment against all three defendants, and the verdict was “for the plaintiff in the sum of $4000 principal, and $205.31 interest.” There was not a word of evidence tending to show that Mrs. McBeynolds was connected with the transactions between the plaintiff and her co-defendants. The verdict as to her is without evidence to support it. The sufficiency of the declaration in attachment was not challenged, nor was there any objection to the evidence, and neither of the defendants participated in the trial. For that reason we pretermit a discussion of the evidence as being sufficient to support the verdict as to McBeynolds and Cook.

3. The verdict is void for the reason that the levy was invalid. The officer’s return of the attachment writ is the foundation of the court’s jurisdiction in all subsequent proceedings against the property attached, and he must return the writ as having been levied on the property of one or more of the'defendants named in *700the writ. 1 Wade on Attachment, § 144; Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498 (55 S. E. 251, 115 Am. St. R. 108); Tuells v. Torras, 113 Ga. 691 (4), 694 (39 S. E. 455); Cooper v. Yearwood, 119 Ga. 44 (45 S. E. 716). The return that the officer levied the attachment on three blocks of shares of stock standing in the name of three separate defendants is.not a return that he levied on such shares of stock as the several property of each of the defendants, or as the-joint property of all of them. In Cooper v. Yearwood, supra, the attachment ran against Tillman Yearwood, and was levied on a tract of land described as having been sold to Tillman Yearwood by Lewis Davis on May 23, 1888, and known as the home place of Tillman Yearwood, with further description as to boundaries; and it was held that these words of description did not designate that the land was levied on as the property of Tillman Yearwood. In New England Mortgage Co. v. Watson, 99 Ga. 733 (27 S. E. 160), an entry of levy of the attachment upon certain described land, with the statement, “tenant in possession notified this day in writing,” was held to be an insufficient return of a levy, because it did not specify that the land was levied on as the” property of the defendant. The proof of a valid levy, where there is no notice to the defendant, is essential to make out the plaintiff’s case. Without such proof the verdict must fall.

Judgment reversed.

All the Justices concur.