131 Ga. 245 | Ga. | 1908
Charles Brown, one of the defendants, had an attachment issued against the Mobile and Ohio Bailroad Company, upon the ground that it was a non-resident of this State, and had it levied upon a freight-car belonging to said company in the possession of the plaintiff. An order was obtained by Brown to sell the car, because of its being expensive to keep. The attachment proceedings were returned to the city court of Atlanta. The plaintiff sought to enjoin the levy and sale and interference with its possession and use of the car. Upon the hearing the court granted the injunction, provided the plaintiff would give bond in the sum of $1,000, conditioned to return the ear to the officers of court after its right to use the same had expired under the contract attached to the petition and under which contract the plaintiff claimed to have held the car. In this judgment the plaintiff was given three days within which to give the bond, during which time the restraining order previously granted was continued in force. To this judgment the plaintiff excepted. Upon the hearing the plaintiff introduced the following evidence: A written agreement between it and the Mobile and Ohio Bailroad Company and other railroads, by virtue of which one road had the right to use the cars of another, for a named charge for hire per day;
1. The plaintiff contends that it operates under the interstate-commerce law, doing an interstate business as a common carrier; that the seizure of the car and sale of the same would interfere with interstate commerce, and with the duties of the plaintiff and of the Mobile and Ohio Eailroad Company to the public; that they could not use the car without losing control and jurisdiction over it; that the property of a common carrier can not be sold in piecemeal; that the proper way to collect a debt from it is a sequestration of the proceeds of its earnings; and that it was the duty of the plaintiff to protect the property of the Mobile and Ohio Eailroad Company — another carrier — from illegal seizure. There have been many decisions upon the question as to whether or not the cars, engines, and other rolling-stock of a railroad company may be levied upon and sold. Some authorities hold that it can be done, and others that it can not. Many hold that it can only be done when the rolling-stock is not in actual use at the time of the levy. The ear levied on in this ease was not in actual use
The fact that the plaintiff held the car under the contract referred to would not make the levy of the 'attachment on it illegal. If the plaintiff was a hirer of the property in question, the judgment of the court granting the injunction provided the plaintiff gave bond to return the car as provided for in the order was one of which the plaintiff can not complain in this ease. Civil Code, §2913. An attachment can be levied on property of a debtor, though hired to another before the attachment is issued. There is nothing in the Civil Code, §2913, preventing an attachment from being levied on such property, and we know of no other statute having such effect.
Judgment affirmed.