Gazan v. Royce & Co.

• Decision Date: 09 May 1887
• Parties: GAZAN v. ROYCE and others.
• Court: Georgia Supreme Court

3 S.E. 753

78 Ga. 512

GAZAN v. ROYCE and others.

Supreme Court of Georgia

May 9, 1887

Error to superior court, Brooks county; HANSELL, Judge.

The writ of error covers two classes of cases. The first is represented by Gazan v. Royce which is an action brought under section 3297 of the Code which is as follows: "Whenever a debtor shall sell or convey or conceal his property liable for the payment of his debts, for the purpose of avoiding payment of the same, or whenever a debtor shall threaten or prepare so to do, his creditors may petition the judge of the superior court of the circuit where such debtor resides, if qualified to act, and if not, the judge of any adjoining circuit, fully and distinctly stating his grounds of complaint against such debtor, and praying for an attachment against the property of such debtor liable to attachment, supporting his petition by affidavit, or testimony, if he can control the same." The second class is represented by Gazan v. Loomis, which was brought under section 3264 of the Code, which provides that "attachments may issue in the following cases: When the debtor resides out of the state when he is actually removing or about to remove without the limits of the county; when he absconds, conceals himself resists legal arrest, or causes his property to be removed beyond the limits of the state." Section 3265 provides that, "before process of attachment shall issue, the party seeking the same, his agents or attorney at law, shall make an affidavit before some judge of the superior court *** that the debtor has placed himself in some one of the positions enumerated in this Code, and also the amount of the debt claimed to be due. When the affidavit is made by the attorney at law or agent of the party, he may swear that the amount claimed to be due is due according to the best of his knowledge and belief."

MacIntyre & MacIntyre, J. G. McCall, W. B. Bennett, J. G. Wade, and Garrard & Meldrim, for plaintiff in error.

D. W. Rountree, E. P. S. Denmark, W. M. Hammond, and J. H. Lumpkin, for defendants.

HALL J.

This writ of error covers two classes of cases. The first class is represented by the case of Gazan v. Royce; the second class by Gazan v. Loomis. The attachment in favor of Royce & Co. was issued under section 3297 of the Code. As appears upon the face of the record from the lower court, the petition in this case was not supported by any affidavit, nor was it supported by testimony of like character as that of an affidavit. Under the principles announced in the case of Loeb v. Smith, ante, 458, at this term, the attachment was fatally defective. The petition says that the petitioner could not swear that the facts set forth in the affidavit in relation to the fraudulent transfer of this property were absolutely true, but asked permission to submit such evidence as was under his control. True, at a subsequent state of the proceedings, the judge said that he had evidence before him (as we take it, oral evidence) which justified his issuing this attachment. If such evidence existed, it depended solely on the judge's recollection. No record was ever made of the fact that it existed. And we have just held (Loeb v. Smith) that, or something equivalent to it, is indispensable to authorize the issuing of such an attachment.

If there were nothing more in this case than that, it would be decisive of the question arising upon that attachment, and all others of the same class included in this record. But in 1884 the claimant made a motion in writing to set aside this attachment, and all others belonging to the same class, for the reasons just mentioned. Upon the hearing of that motion (which was placed upon the motion docket) it was overruled by the court, and no exception was taken to the decision overruling it. It was stated that exceptions pendente lite were filed to the motion, but they did not appear upon the record. If they were filed to that decision they were never placed upon the minutes of the court, where they should have gone. The case was afterwards brought to this court by the plaintiffs in attachment, who were cast on the first trial, and here the decision was reversed. These exceptions were not brought up, nor was error assigned upon them in this court, and nothing more was heard of them until this claim was on its final trial in 1886, and then an order was taken to enter the decision made in 1884 upon the minutes of the court nunc pro tunc. That order was granted. On the trial of the main issue the claimant moved to exclude the attachment as evidence, upon the ground formerly stated, and to dismiss the lien created by the attachment. This motion was overruled, and the claimant excepted. It was overruled on two grounds, the latter of which need...