Cox v. Henry

• Decision Date: 26 April 1901
• Citation: 113 Ga. 259,38 S.E. 856
• Parties: COX . v. HENRY et al.
• Court: Georgia Supreme Court

38 S.E. 856

113 Ga. 259

COX .

v.HENRY et al.

Supreme Court of Georgia.

April 26, 1901.

ATTACHMENT — NONRESIDENCE — DECLARATION—DISMISSAL—AMENDMENT.

1. An attachment will not lie in this state against a trustee on the ground of nonresidence.

2. Where an attachment was issued against several parties, and a declaration was filed by the plaintiff, founded upon this attachment, in which he alleged that these several parties were indebted to him in a certain sum upon a promissory note thereto attached, the declaration being against all of the defendants jointly, and the attached copy of the note showing that only one of the defendants had signed the note, the court did not err in dismissing the declaration and attachment on motion of some of the defendants. When two or more persons are sued jointly by attachment on an alleged contract, and the contract, attached as an exihibit to the declaration, shows that only one of the defendants is liable, the plaintiff cannot recover.

8. An amendment to the declaration, in which it was alleged that the defendants who had not signed the note had agreed in writing to pay off the same when it became due, was properly disallowed, as setting out a new cause of action.

(Syllabus by the Court.)

Error from superior court, Dawson county; Estes, Judge.

Action by Mathew Cox against W. E. Henry and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Dean & Hobbs, for plaintiff in error.

H. H. Perry and J. C. Boone, for defendants in error.

SIMMONS, C. J. It appears from the record that Cox sued out an attachment against "W. D. Henry, trustee for A. B. Spain, E. J. Booker, J. M. Pannell, W. L. Pannell, S. L. Henry, W. D. Henry, and O. F. James, and the said W. D. Henry, A. B. Spain, E. J. Booker, J. M. Pannell, W. L. Pannell, S. L. Henry, and O. F. James." This attachment was based on the ground that the defendants were all nonresidents. Levy was made on the mineral Interests in certain land and on certain personal property. At the return term ofthe attachment the plaintiff filed his declaration. This declaration alleged that the defendants were indebted to the plaintiff in the sum of $500 on a certain promissory note attached to the declaration. The note attached was signed by "W. D. Henry, Trustee." At the trial term several of the defendants appeared and moved to dismiss the action because (1) an attachment will not in this state lie against a trustee because of his nonresidence; (2) the declaration was against all of the defendants jointly, while the note attached bound Henry only. The plaintiff offered an amendment, alleging in substance that, while the note was only signed by Henry as trustee, the other defendants had agreed in writing for a valuable consideration to pay off the note when It became due. The trial judge sustained the motion to dismiss as to the parties moving, and afterwards dismissed the proceeding as to the other defendants.

1, 2. It is now well settled in this state that an attachment will not He against a trustee on the ground that he is a nonresident. Smith v. Riley, 32 Ga. 35G; Burns v. Lewis, 86 Ga. 598, 13 S. E. 123. The declaration also alleged that Henry and the other defendants were as individuals Indebted upon the note, which was attached to the declaration. A careful reading of the declaration will show that this count declared against all of the defendants as joint promisors, and alleged that they were jointly liable. The note attached to the declaration was signed by "W. D. Henry, Trustee, " and bound him personally. The note made the debt that of Henry individually. There was no motion to amend by striking out the other defendants and to proceed against Henry alone. The suit, then, was joint, and the exhibit showed that but one of the defendants was bound by the contract sued on. The note was the alleged...