145 Ga. 741 | Ga. | 1916
Lead Opinion
The Fourth National Bank sued out an attachment against O. F. Smith as a fraudulent debtor, on the ground that he “is selling or conveying or concealing his property liable for the payment of his debts, in that he is trying to dispose of said property to avoid the payment of the same, and is threatening and preparing so to do.” The attachment was issued without a hearing, and was levied upon a certain tract of land as belonging to the alleged fraudulent debtor. The entry of levy recited that the
In his motion to dismiss the attachment the defendant set up that the property attached was subject to a deed made by him to secure debt to Mrs. Ashton Starke, for $2,000, executed and recorded more than three years prior to the levy, which debt had not been paid; and at the time of the issuance of the attachment the property had been conveyed by warranty deed to Mrs. Roper, and that he had no interest in any part of the property. As the court struck this motion as stating insufficient grounds for quashing the levy, the facts as alleged must be taken to be true in deciding on the correctness of the court’s ruling.
There was personal service of the declaration. Therefore the general judgment of the plaintiff will not be affected. The statute provides that no traverse or other proceeding in attachment shall delay judgment on the declaration, where personal service has been perfected, but judgment may be had thereon, subject to the rules of common law, as well before the trial of the issue made on the attachment proceedings as afterwards. Civil Code (1910), § 5107; Daniel v. Hochstadter, 73 Ga. 144 (2).
So much of the judgment as provides for a special lien upon
the land is reversed. The general judgment is affirmed.
Concurrence Opinion
concurring specially. I concur in a part of what is said, but I can not concur in all of it. The idea that a debtor can occupy land, use it, receive rents, issues, and profits from it, and yet, when an execution against him is levied on it, can set up
Decisions that, under the section mentioned, the debtor has no leviable interest (where the point was made by third parties) do not conclude the point mentioned above.