Bruce v. Conyers

• Decision Date: 31 July 1875
• Citation: 54 Ga. 678
• Parties: J. A. Bruce, plaintiff in error. v. W. B. Conyers, defendant in error.
• Court: Georgia Supreme Court

54 Ga. 678

J. A. Bruce, plaintiff in error. v. W. B. Conyers, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

*Attachment. Practice in the Supreme Court. Before Judge Buchanan. Carroll Superior Court. April Adjourned Term, 1875.

Bruce, for the purpose of obtaining an attachment against Conyers, made affidavit that the latter was indebted to him $719 19, for the purchase money of articles now in his possession; that he apprehended the loss of his debt, or of some part of it, unless process of attachment issued; that, to the best of his knowledge and belief, the following was a correct list and description of the articles for which the debt was created: four fancy decanters, etc. A levy was made and Conyers replevied. A declaration was filed and personal service effected on defendant. When the case was called for trial, a motion was made to dismiss the attachment because of the insufficiency of the affidavit. The motion was sustained and plaintiff had an exception pendente lite entered of record. Subsequently a bill of exceptions was filed to this ruling, and this branch of the case was brought up independently of the personal suit. What became of that does not appear.

Error is assigned upon the dismissal of the attachment.

Gartrell & Stephens; Mabry & REESE, for plaintiff in error.

A. B. Culberson; Austin & Harris; J. B. S. Davis, for defendant.

Bleckley, Judge.

1. The motion to dismiss the attachment was not too late: 48 Georgia, 12. The defendant having filed no plea, the case was not at issue upon the merits; consequently, the 15th rule of court, and the case in 44 Georgia, 454, were no obstacles to the motion. I should hesitate to pronounce them obstacles at any stage of the proceedings, even after issue joined on the merits of the action, where, as here, the defect in the affidavit is.patent, and one that renders the attachment absolutely void. *The attachment, whether good or bad, brings the defendant into court, if he is served with notice, or if he appears and defends, or if he replevies the property, and he remains in court, though the attachment be dismissed: Code, sections 3309, 3313, 3328; 46 Georgia, 225; 53 Ibid., 558. Motion to dismiss the attachment is, therefore, not a denial that the process is sufficient to bring him into court, but a denial of its sufficiency to seize and hold his property. Such a motion goes to the writ, while a plea to the merits goes to the action. The two things, under our...