56 Ga. App. 696 | Ga. Ct. App. | 1937
A purchase-money attachment was sued out by Yarn Motors Finance Company (transferee of an automobile note and retention-title contract) against T. E. Stalvey and J. H. Stalvey. The attachment was issued on February 20, 1936, by Hon. E. .G. Dickerson, judge of the city court of Yaldosta, Lowndes County, and made returnable to the April term, 1936, of said city court. The attachment was levied on the automobile therein described, at Yaldosta. , The defendants were residents of Cook County at the time the note was executed and the attachment issued, and have since continued to reside in Cook County. They did not make bond, or appear or plead in anywise to the attachment in the city court of Yaldosta. No declaration in attachment
The jurisdiction and the powers of the city court of Valdosta are by the act creating that court (Ga. L. 1901, p. 181, see. 18) made the same as those of the superior court. This act says: “All laws upon the subject of attachments and garnishments, as to any matter whatever in the superior court of this State, shall apply to said city court as if named with the superior court, as far as the nature of the city court will admit.” If -the plaintiff had
An amendment to the writ of attachment (execution) was offered by the plaintiff in Cook superior court, and allowed over objection, making said writ returnable to the August term, 1936, of Cook superior court, in lieu of the April term, 1936, of the city court of Valdosta. “Formerly the attachment laws were construed strictly, one of the provisions of which was that any attachment sued out and returned, otherwise than the act itself prescribed, should be void. The late law, by providing that a substantial compliance with its provisions shall be sufficient, has intentionally overturned the old doctrine.” Force v. Hubbard, 26 Ga. 289, 290. See also Code, § 8-118. “The plaintiff in attachment shall have the right to amend his attachment, or bond, or declaration, as in other cases at common law.” § 8-610; Fine v. Frankel Clothing Co., 22 Ga. App. 404 (95 S. E. 1017). “While an attachment should give directions for its return, still cit is not this written direction to the sheriff or constable which gives the court jurisdiction, but the law.’ Blake v. Camp, 45 Ga. 298.” Rhodes v. Continental Furniture Co., 2 Ga. App. 116 (58 S. E. 293). The writ in the present controversy was in fact filed in the proper court, to wit, the superior court of Cook County, and the superior court of Cook County properly overruled the objection to its jurisdiction. In Blake v. Camp, 45 Ga. 298, it was said: “The attachment was returned by the officer to the 1120th district, which was the proper district, according to the last residence of the defendant, and the trial was had and judgment obtained before the magistrate of that district. By a mere slip of the pen, the magistrate who issued the attachment had made it returnable to his own district. He used his printed forms, and made it returnable to the justices’ court of said district, which, as a matter of course, must be taken literally to be the district mentioned on the margin, to wit: 919th district. But the bond recites the proper district; the officer who served the attachment returned the affidavit, bond, and attachment to the proper district, and it was then tried and judgment given. The court giving the judgment had jurisdiction of the case under the law. The only trouble is that the direction to the officer in the attachment process was, by a clerical error,
The plaintiffs in error made a motion to dismiss the attachment and the declaration thereon, for want of legal and sufficient service on defendants to authorize a general judgment against them. It was agreed by both sides “that the notices of attachment and filing declaration thereon were regular, except that they were not signed by plaintiff in attachment, their attorney at law, nor any one as agent for them; that the unsigned notices were served on defendants by the sheriff of the county.” Notice under the Code, § 8-601, is to be given of “the pendency of such at
Vibbart, the dealer who sold the car represented by the contract sued on to the defendants, offered to testify that he assigned the contract to the plaintiff, and that upon the failure of the defendants to pay the balance due the same was charged back to his (Yibbart’s) account with the plaintiff. He offered to testify to this effect upon the basis of a typewritten unsigned memorandum
The court refused to admit the testimony of the defendants and E. F. Fender, to the effect that the automobile represented by the note sued on, was damaged when in the possession of one Eoberts. The only testimony as to the authority of Eoberts to represent the plaintiff was given by Eoberts himself, who was put upon the stand by the defendants as their witness. Eoberts testified as to his agency and his authority, or lack of authority, to take cars in settlement of money due, as follows: Thai he was authorized to “collect money due plaintiff, to take possession of cars and have them stored when the payments were in arrears, hut that he did not have any authority to take cars in settlement of money due” to the plaintiff. If the defendants were undertaking to recover for damages for injury done to the car while in the plaintiff's possession, they should have filed a plea of recoupment or counter-claim, and in the absence of such a plea the evidence was inadmissible for this purpose. In Walker v. Kingston Supply Co., 18 Ga. App. 447 (89 S. E. 533), the court said: “If an affirmative defense is relied on it must be specially pleaded. If a defense in the nature of a set-off is relied on it must be distinctly set out in the pleadings. The plea in this case was a general denial of the account, with the admission of a small amount due. The court, over objection, admitted evidence that the plaintiff agreed that one-half of a certain fertilizer account should be paid by him and that this amount should be credited on the account in suit. This evidence was in the nature of a set-
The defendants, however, further contended in view of Eoberts’ testimony quoted above, that the testimony offered and rejected, to the effect that the defendants turned the car over to Eoberts, and that the car had been driven and damaged after it was taken over and before it was sold under the attachment, was admissible for the reason that it was a fact or circumstance tending to uphold and strengthen the evidence and contention of the defendants in attachment, that they turned the car over to Eoberts as agreed, for the plaintiff, in settlement of the balance due on it, and that Eoberts was authorized by the plaintiff to so accept the same. The testimony referred to above was all of the evidence admitted or offered as to the authority of Eoberts and his apparent scope of authority to take ears in settlement of money due the plaintiff. Evidence which tends to establish the issue is admissible, although not of itself sufficient for that purpose. Evidence of circumstances contradictory of testimony of lack of agency should not generally be excluded. Rolwing v. Grissom (Mo. App.), 40 S. W. (2d) 752. But, where the evidence on the issue of agency is all submitted, and the evidence in question offered and objected to would not alone have established the claimed authority of the agent, and there being no other evidence which, coupled with it, would have established the agency with the authority claimed, the whole evidence being considered in its most favorable aspect to the person endeavoring to establish such authority, the evidence offered and rejected, if admitted, would have amounted to nothing. The testimony in question, if allowed, would not have added to or assisted in the proof of the claimed authority of the agent; for, with this testimony in, no such authority would have been proved by the whole testimony offered. The testimony in question would not alone have proved the authority claimed to be in the agent, nor was it a link in a chain of circumstances that would have proved the claimed authority; for there was no such chain of circumstances proved or offered to be proved. The testimony in question, standing alone, had no logical force to prove the kind of agency claimed. On account of lack of support by
Judgment affirmed.