Smith v. Salmon

149 Ga. 699 | Ga. | 1920

George, J.

Mrs. Paul E. Smith filed an equitable petition in Eloyd superior court, against Frank Salmon, doing business as the Frank Salmon Furniture Company, W. F. Salmon, his agent, and W. W. Hawkins, a justice of the peace, all residents of Floyd county. In substance the plaintiff alleged, that on November 23, 1917, Frank Salmon, by and through his agent, W. F. Salmon, made affidavit before the justice of the peace aforesaid, for the purpose of having attachment issue agáinst the plaintiff, who was temporarily absent from the county; that it was averred in the affidavit that the plaintiff was due Frank Salmon the sum of $50.20; that subsequently bond was given, and the attachment was issued and levied upon certain houshold and kitchen furniture of the plaintiff; that thereafter a judgment in attachment was entered against the plaintiff and the specific property seized by the levying officer, and in due course the property was sold and the proceeds thereof disposed of as follows: $50.20 to Frank Salmon, $8.70 for costs, and $6.00 for drayage, leaving a balance of $18.54 to be paid to the plaintiff; that the plaintiff was not in fact indebted to Frank Salmon in any sum whatever, and the affidavit, the foundation of the attachment proceeding, was wilfully, knowingly, falsely and fraudulently made for the purpose of giving the court jurisdiction to enforce against the plaintiff (who did not owe the same, to the knowledge of Frank Salmon) an alleged demand held or claimed by Salmon against the plaintiff’s husband; that the plaintiff had a perfect defense to the attachment suit, but did not have notice or knowledge of the same until after the sale of her property and the disposition of the proceeds thereof as aforesaid. She prayed that the judgment in attachment be set aside, the sale declared void., her property restored to her, “or that the said Frank Salmon, doing business as Frank Salmon Furniture Company, pay your petitioner the value thereof,” and for process. Frank Salmon and W. F. Salmon demurred upon the grounds that the petition set forth no cause of action, that the plaintiff had an adequate and complete remedy at law, and that the court was without jurisdiction to grant the relief prayed. The demurrer was sustained, and the plaintiff excepted.

Applying the principle ruled in Neal v. Boykin, 129 Ga. 676 (59 S. E. 912, 121 Am. St. R. 237), Wade v. Watson, 133 Ga. 608 (66 S. E. 922); Wallace v. Wallace, 142 Ga. 408 (2) (83 S. E. 113), and Lester v. Reynolds, 144 Ga. 143 (2), 144 (86 S. E. 321), the petition set forth a cause of action, and the court erred in dismissing it upon demurrer.

Judgment reversed.

All the Justices concur.