Clay v. Tapp Leather Co.

• Decision Date: 03 March 1888
• Citation: 7 S.E. 256,79 Ga. 596
• Parties: CLAY v. TAPP LEATHER Co. et al., three cases.
• Court: Georgia Supreme Court

7 S.E. 256

79 Ga. 596

CLAY v. TAPP LEATHER Co. et al., three cases.

Supreme Court of Georgia

March 3, 1888

Syllabus by the Court.

An attachment against a fraudulent debtor cannot issue under section 3297 of the Code until after a bond has been taken in pursuance of section 3298. Rogers v. Birdsall Co., 72 Ga. 133. Nor will a mandate of the judge who issued the attachment, written in the margin of the same, declaring that the attachment is not to be levied until a bond approved by the clerk has been given, render the writ valid, there being no provision of law for qualifying the attachment in that way.

Error from superior court, Sumter county; FORT, Judge.

E. A Hawkins, Guerry & Son, B. P. Hollis, E. G. Simmons, and E. F Hinton, for plaintiff in error.

Jas Dodson & Son, N. A. Smith, and J. C. Matthews, for defendants in error.

BLECKLEY C.J.

These three cases were argued together. They each involve the question whether the court should have dismissed the levy upon motion of the claimant. In No. 7 the attachment was issued November 12, 1885, bond was given and approved by the clerk, November 13th; the levy was made on the 13th. The petition was sworn to by the plaintiff's attorney; the affidavit being that the statements contained in the petition are based upon the affidavits by M. B Council and Timberlake, here to the court shown, except as to the amount of the debt, and that is true, to the best of deponent's knowledge and belief. In No. 8 the attachment was issued November 10, 1885; bond was given and approved by the clerk November 11th; and the attachment was levied on the 11th. The petition refers to an affidavit of W. B. Council and J. B. Timberlake, herewith submitted. The affidavit of the plaintiff's attorney simply swears to the debt as set forth in the petition, to the best of the deponent's knowledge and belief; not otherwise verifying the petition. All three of the attachments were issued by the judge of the superior court. Upon the margin of No. 7 he made this entry: "This attachment not to be levied until a bond approved by the clerk of the superior court of Sumter county is given." Upon the margin of that issued in No. 10 he made this entry: "This attachment not to be levied until good and sufficient bond is given, to be approved by the clerk of the Sumter superior court." In each of these cases, a motion was made by the claimant to dismiss the levy, because it appeared that...