City Trade and Industries, Limited v. Allahabad Bank, Limited

• Decision Date: 16 June 1966
• Docket Number: No. 42029,No. 1,42029,1
• Parties: CITY TRADE & INDUSTRIES, LTD. v. ALLAHABAD BANK, LTD., et al
• Court: Georgia Court of Appeals

Page 182

150 S.E.2d 182

114 Ga.App. 12

CITY TRADE & INDUSTRIES, LTD. v. ALLAHABAD BANK, LTD., et al.

No. 42029.

Court of Appeals of Georgia, Division No. 1.

June 16, 1966.

Rehearing Denied June 30, 1966.

Allahabad Bank, Ltd., and The Bank of Baroda, Ltd., instituted in the Superior Court of Chatham County an attachment proceeding in which it was deposed that City Trade & Industries, Ltd., was indebted to them in attachment in the sum of $370,766.20 and that said defendant was selling or conveying its property liable for the payment of its debts for the purpose of avoiding the payment of the debt and that the defendant resided out of the State of Georgia. The affidavit contained no description of the property to be levied upon. The attachment directed to the sheriff or his deputy, etc., directed the seizure of 'all that jute or jute backing cloth stored at the Garden City Terminals of the Georgia State Ports Authority as will make the amount of the alleged debt to plaintiff, and to serve such summons of garnishment as might be placed in the hands of said officers and to make return to the December term, 1964, of the Superior Court of Chatham County. The attachment was signed by Judge Edwin A. McWhorter, Senior Judge of the Superior Court of the Eastern Judicial District. A deputy sheriff made the following return on the attachment: 'Sheriff's Office, Superior Court, Savannah, Ga. September 4th, 1964. I have this day served the within Affidavit, Bond, & Attachment upon the defendant, (s) City Trade & Industries, Ltd. by handing _ _ a copy thereof to James I. Newsome, Director of Operations, Georgia State Ports Authority in person. The Return of /S/ T. H. Johnson, Deputy Sheriff, Chatham Co. Ga.' The plaintiff filed the following declaration in attachment: 'Now come Allahabad Bank, Limited and Bank of Baroda, Limited, plaintiffs in attachment, and in accordance with Section 8-601, et seq., of the law of Georgia, state the following: 1. The property, that is jute, of defendant, City Trade & Industries, Ltd., is subject to the jurisdiction of this court because the property is located within Chatham County, Georgia, to wit: at the Garden City Terminals of the Georgia State Ports Authority. Further, City Trade & Industries, Ltd.: (a) is selling or conveying its property liable for the payment of its debts for the purpose of avoiding payment of a debt due the plaintiffs, and (b) said debtor resides out of the State of Georgia, both of which are grounds for an attachment. 2. City Trade & Industries, Ltd. is indebted to the Allahabad Bank, Limited, in the amount of $343,915.26 together with interest at 6% from the respective maturity dates plus protest fees on a series of negotiable trade acceptances. A list of the bills and their individual amounts is set out as Exhibit 'A'. Copies of the bills are attached hereto as Exhibits 'C', 'D', 'E', 'F', 'G', 'H', 'I', 'J', and 'K'. 3. City Trade & Industries, Ltd. is indebted to The Bank of Baroda, Limited, in the amount of $26,850.94 together with interest at 6% from their respective maturity dates plus protest fees on a series of negotiable trade acceptances. A list of the bills and their individual amounts is set out as Exhibit 'B', and attached hereto. Copies of the bills are attached hereto as Exhibits 'L', 'M' and 'N'. 4. Although demand has been made for payment defendant has failed and refused to do so. Wherefore, your petitioners pray that they may have judgment against the property of the defendant now in the hands of the Georgia State Ports Authority and located at Garden City Terminals in the amount of $370,766.20 plus interest at 6% from the various protest dates and all costs of this action.' The declaration was amended to include other trade acceptances. It was also amended to include as a plaintiff in attachment, the Bank of Tokyo, Ltd., and to show the amount of indebtedness to the three plaintiffs to be $540,138.51. The last amendment to the declaration is as follows: 'Third Amendment to Declaration in Attachment Now come the Allahabad Bank, Limited, the Bank of Baroda, Limited and the Bank of Tokyo, Ltd., plaintiffs in attachment, and with leave of court, amend their declaration in attachment as follows: 1. By adding the following sentence after the first sentence in paragraph 1 of the declaration, to wit: 'The sheriff was commanded to attach and seize so much of the jute or jute backing cloth stored at the Garden City Terminals of the Georgia State Ports Authority as will make the sum of Three Hundred Seventy Thousand, Seven Hundred Sixty-six and 20/100 ($370,766.20) Dollars and costs. That T. H. Johnson, Deputy Sheriff of Chatham County, did on September 4, 1964, levy on said property and obtain Mr. James Newsome, an officer of the State Ports Authority's agreement to hold said property for the sheriff as his agent. Mr. Newsome so advised Mr. Jacobi, Vice-President of City Trade & Industries, Ltd.' 2. By adding the following additional sentence after the word 'authority.' in the first sentence in paragraph 1 of the declaration, to wit: 'Plaintiffs show that all property of defendant stored at the Georgia State Ports Authority warehouses at the Garden City, Georgia, terminals was held subject to this attachment but was released following an agreement among the parties directed to the Georgia Ports Authority and approved by the Sheriff of Chatham County's deputy, George Kapner. A copy of the letter from Mr. Kaslow authorizing Mr. Sparkman as attorney for the defendant to enter into this agreement is attached as Exhibit I. A copy of the letter from the three attorneys involved in the matter directed to the Georgia Ports Authority and approved by the Sheriff's office of Chatham County is attached as Exhibit II. A copy of the receipt accepting this agreement from Mr. James I. Newsome, Director of Operations of the Georgia Ports Authority is attached as Exhibit III. An amendment was filed to this declaration on June 16, 1965, adding another plaintiff and showing the total amount due the plaintiffs to be Five Hundred Forty Thousand One Hundred Thirty-eight and 51/100 ($540,138.51) Dollars.' 3. Amend the prayer of the declaration to conform to the exhibits attached herewith by inserting the following language after the word 'hands': 'of James Talcott, Inc., which funds arose from the proceeds of the sales carried out pursuant to Exhibits I, II and III of the jute formerly in the hands of the Georgia Ports Authority to the extent that said proceeds exceed the debt owed James Talcott, Inc. and against the remaining jute still in the hands'. Wherefore, your petitioners pray that this their amendment be allowed.' The agreement to release the jute to James Talcott, Inc., is as follows: 'November 30, 1964. Georgia Ports Authority, Garden City Terminals,...