Enneking v. Clay

• Decision Date: 05 March 1888
• Citation: 7 S.E. 257,79 Ga. 598
• Parties: ENNEKING et al. v. CLAY.
• Court: Georgia Supreme Court

7 S.E. 257

79 Ga. 598

ENNEKING et al. v. CLAY.

Supreme Court of Georgia

March 5, 1888

Syllabus by the Court.

Where no regular order granting an attachment applied for under section 3297 of the Code appears, the affidavit to the petition as to the ground of the attachment must be positive. Brown v. Massman, 71 Ga. 859.

An order signed by the judge, bearing equal date with the attachment, and written on the margin of the same, in these terms: "Upon the execution of good and sufficient bond under the law in attachment cases, to be approved by the clerk of the superior court of Sumter county, the attachment is to take effect," is not a judgment granting the attachment, but is simply a mandate suspending its operation. There is no provision of law for such a mandate.

It appearing on the face of the record that no bond was given until after the judge issued the attachment, the attachment was, for that cause also, invalid. Rogers v. Birdsall Co., 72 Ga. 133.

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

J. A. Ansley, for plaintiffs in error.

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

BLECKLEY C.J.

The petition for attachment was against a fraudulent debtor under the Code, §. 3297. It was verified by the plaintiff's attorney, whose affidavit stated that "the facts contained in the foregoing petition are true, so far as they depend upon his own information and belief, and so far as they depend on the information of others, he believes them to be true; and that this information was derived from a trial of said matter before the judge of the superior court of said county; and as to the indebtedness of Dickson & Vigal to the petitioners, deponent believes them to be true, to the best of his knowledge and belief,

1. There was no regular order granting an attachment; and, that being so, the affidavit to the petition as to the ground of the attachment should have been positive. Brown v. Massman, 71 Ga. 859. And see Loeb v. Smith, 3 S.E. 458; Gazan v. Royce, 3 S.E. 753, (March term, 1887.)

2. In the margin of the attachment was a mandate of the judge, the terms of which are recited in the second head-note. We cannot construe this into a judgment granting the attachment. It was not intended as such, but simply as a mandate suspending the operation of the writ, and there is no law for such a mandate. We think, therefore, that the attachment...