High v. Padrosa

• Decision Date: 04 March 1904
• Citation: 119 Ga. 648,46 S.E. 859
• Parties: HIGH . v. PADROSA (two cases).
• Court: Georgia Supreme Court

46 S.E. 859

119 Ga. 648

HIGH .

v.PADROSA (two cases).

Supreme Court of Georgia.

March 4, 1904.

ATTACHMENT—SITUS OF DEBT—DECLARATION —AMENDMENT—PLEA TO JURISDICTION.

1. As a general rule, the situs of a debt is at the place where the creditor is domiciled.

2. A declaration in attachment, based upon an attachment sued out against the defendant on the ground that he is a nonresident of the state, which alleges that the attachment has been executed by serving summons of garnishment upon a resident of this state, is amendable by averring that the debt due from the resident garnishee to the nonresident defendant is payable within the limits of this state.

3. A plea to the merits in an attachment case of the character above referred to, which is filed with a distinct protestation that no jurisdiction has been acquired, by the levy of the attachment, either of the person or property of the defendant, and which distinctly reserves the right to object to the jurisdiction of the court, does not have the effect to admit jurisdiction, and will not authorize a personal judgment against the defendant.

(Syllabus by the Court.)

Error from Superior Court, Glynn County; T. A. Parker, Judge.

Actions by Benito Padrosa against John High. Judgments for plaintiff, and defendant brings error. Affirmed in one case, and reversed in the other.

Ernest Dart, for plaintiff in error.

W. E. Kay, for defendant in error.

COBB, J. 1. In the case of Central of Georgia Railway Company v. Brinson, 109 Ga. 354, 34 S. E. 597, 77 Am. St Rep. 382, which was followed in Johnson v. Southern Railway Company, 110 Ga. 303, 34 S. E. 1002, each being a decision by six justices, the rule that the residence of the creditor fixes the situs of the debt was recognized and applied in garnishment cases. This rule was also applied in the cases of Henry v. Lennox-Haldeman Company, 116 Ga. 9, 42 S. E. 383, and Beasley v. Lennox-Haldeman Company, 116 Ga. 13, 42 S. E. 385, each being a decision by only five justices. Application is now made to review the two decisions first mentioned. Respectable authority may be found on either side of the questions involved in this case; but. after diligent investigation and mature reflection, the court, as constituted when the decisions referred to were rendered, adopted and followed the line indicated in the opinions in those cases. Some of the members of the bench as at present constituted, the writer being among the number, are entirely satisfied with the conclusions then reached, and the decisions will have to stand until the time arrives when there are six justices who feel disposed to take the contrary view. The case of Molyneux v. Seymour, 30 Ga. 440, 76 Am. Dec. 662, is, upon its facts, not in conflict with anything ruled in the eases above referred to. While some of the expressions of Judge Lumpkin may apparently conflict with the principle laid down in those cases, that case at last, as will be seen by the concluding paragraphs of the opinion, turned upon the validity and regularity of a South Carolina Judgment which had adjudicated the question that there was, at the time that judgment was rendered, an attachable debt within the limits of South Carolina, and the court simply held that full faith and credit would be given to this judgment.

2. The attachment was issued by an officer authorized to issue attachments, and was regular upon its face. The attachment was not void, and property of the defendant could be lawfully...