Connolly v. Atlantic Contracting Co.

• Decision Date: 11 May 1904
• Citation: 47 S.E. 575,120 Ga. 213
• Parties: CONNOLLY v. ATLANTIC CONTRACTING CO. et al.
• Court: Georgia Supreme Court

47 S.E. 575

120 Ga. 213

CONNOLLY v. ATLANTIC CONTRACTING CO. et al.

Supreme Court of Georgia

May 11, 1904

Syllabus by the Court.

1. Where an attachment was sued out against four defendants, and the return of the levying officer showed that the property seized was levied on as the property of only one of them, the levy was properly dismissed as to the other three.

2. In the absence of evidence to the contrary, it will be presumed that an officer did his duty, and did not exceed his authority; and, when the return of an officer on the levy of an attachment fails to show in what county the levy was made but the levy is in other respects legal and regular, the failure to set out where the levy was made is no ground for dismissal.

Error from City Court of Savannah; T. M. Norwood, Judge.

Action by M. A. Connolly against the Atlantic Contracting Company and others. Judgment for defendants, and plaintiff brings error. Affirmed in part, and reversed in part.

David C. Barrow, for plaintiff in error.

Walter G. Charlton, for defendants in error.

CANDLER J.

On August 24, 1900, Connolly sued out an attachment in Chatham county against the Atlantic Contracting Company, a West Virginia corporation, and B. D. Greene, J. F. Gaynor, and E F. Gaynor; the grounds of attachment being the nonresidence of the defendants. The return of the officer on this attachment was as follows: "I have this day levied the within attachment upon one tugboat Wm. C. Turner, one tugboat Harold, both steamers, three wooden barges not named, one large yawlboat, one small yawlboat, one boiler and pumps, one wheel of iron, the said tugs and barges now lying in the river in Savannah harbor opposite East Broad, except the yawls, which with the boiler and pumps and wheel are in the storehouse on the island across the river. Levied on as the property of the Atlantic Contracting Company. Levied on this Aug. 24, at 5:45 p. m., 1900. [ Signed] M. L. Lilienthal, C C. Co., Ga." On September 8, 1900, counsel for the plaintiff filed an application for a speedy sale of the property levied on, upon the ground that to keep the same pending the litigation would be expensive and burdensome. Service of notice of the applicant's intention to apply for the order to sell was acknowledged by Walter G. Charlton, Esq., as attorney for the defendants. On the hearing of the application the property in question was by the court ordered to be sold. The declaration in attachment, which was made returnable to the November term, 1900, of the city court of Savannah, was served upon the firm of Charlton & Charlton, as attorneys for the Atlantic Contracting Company, by serving R. M. Charlton, a member of said firm. The return of service was traversed, and it being made to appear that the defendants were represented by Walter G. Charlton, and not by the firm of Charlton & Charlton, the return was stricken and the traverse sustained. The answer of the defendants denied all the material allegations of the declaration. At the trial the levy was dismissed, as to Greene and the Gaynors, on the ground that the property seized was not levied on as their property; and, as to the Atlantic Contracting Company, it was dismissed because the levy did not show where the property was seized. Before the levy was dismissed as to the Atlantic Contracting Company, counsel for the plaintiff asked the court to consider the papers of record in the case, and to permit the introduction of oral evidence in aid of the levy, to show that the locality named therein at which the property was seized was in Chatham county. This motion the court overruled. It was further moved that, in view of the fact that the officer who made the levy was dead, the court, after hearing evidence on the subject, should amend the return by adding the words "Georgia, Chatham county," but this motion was likewise refused. To the judgment dismissing the levy as to the four defendants, and refusing to consider the record or hear aliunde evidence as to the locality of the property at the time of the levy, the plaintiff excepted. The record contains a brief of the evidence introduced on the trial, but, inasmuch as the questions set out in the foregoing statement are the only ones for decision by this court, a more detailed statement of the evidence is unnecessary.

1. There was no error in dismissing the levy and attachment as to Greene and the two Gaynors. The property seized was levied upon as the property alone of the Atlantic Contracting Company, and this is distinctly shown by the levy itself. In Tuells v. Torras, 113 Ga. 691, 39 S.E. 455, it was held that, "it is essential to the validity of the levy of an attachment issued against a nonresident that the entry of levy should show that the property was levied on as that of the defendant in attachment, and this is so whether the property be realty or personalty." In the opinion of Mr. Justice Cobb in that case the question now under consideration was fully discussed, and further discussion of it now would be useless. See, also, New England Mortgage Co. v. Watson, 99 Ga. 735, 27 S.E. 160. In order for the levy to have been good as against all four of the defendants, it must have appeared in the return that there was a valid seizure of property belonging to each and all of them; and, the levy failing to show that any of the property levied on belonged to Greene or the Gaynors, it was properly dismissed as to them.

2. The court erred in dismissing the levy and attachment as to the Atlantic Contracting Company, and in refusing to consider the papers of record, and other evidence in aid of the levy. All the property levied on was...