B. W. & J. P. Force & Co v. Hubbard

• Decision Date: 31 August 1858
• Citation: B. W. & J. P. Force & Co v. Hubbard, 26 Ga. 289 (Ga. 1858)
• Court: Georgia Supreme Court
• Parties: B. W. & J. P. Force & Co., plaintiffs in error. vs. W. L. Hubbard et al, defendants in error.

26 Ga. 289

B. W. & J. P. Force & Co., plaintiffs in error. vs. W. L. Hubbard et al, defendants in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1858.

AUGUST TERM, 1858.

Garnishment, Fulton Superior Court, April Term, 1858, Judge Bull presiding.

The affidavit upon which the summons in garnishment in this case issued stated that "defendant was indebted to plaintiffs upon a fi. fa. issued upon a judgment." Counsel for defendant moved that the garnishment be discharged, on the ground that the affidavit was insufficient. The Court granted the motion, and plaintiffs excepted.

Green B. Haygood, for plaintiffs in error.

Glenn & Cooper, contra.

By the Court.—Lumpkin, J., delivering the opinion.

Formerly, the attachment laws were constructed 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.

In this case the party swears that there is so much due him upon the fi. fa. issuing upon the judgment, instead of deposing as to the indebtedness upon the judgment itself. We are clear that the affidavit is sufficient. What is due upon an execution issuing upon a judgment is due upon the judgment upon which it issued, and no more and no less. The judgment is the evidence of the debt; the fi. fa. the process for enforcing it. To swear, as the creditor did in this case, that there is so much due upon the fi. fa. issuing upon a particular judgment, is, in substance, to swear that there is so much due upon the judgment itself. In other words, there can not be one sum due upon the judgment, and another upon the execution.

Judgment...