Kimball v. Davidson

• Decision Date: 31 January 1877
• Citation: 58 Ga. 175
• Court: Georgia Supreme Court
• Parties: Hannibal I. Kimball, plaintiff in error. v. Nicol & Davidson, defendants in error.

58 Ga. 175

Hannibal I. Kimball, plaintiff in error. v. Nicol & Davidson, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Attachment. Judgments. Pleadings. Practice in the Superior Court. Before Judge PEEPLES. Fulton Superior Court.

April Adjourned Term, 1876.

On January 2d, 1872, Nicol & Davidson commenced suit by attachment against Kimball. A declaration was filed at the April term, 1872, and at the next succeeding term, on October 26th, 1872, a general judgment was rendered by the court in favor of the plaintiffs against defendant. On June 8th, 1876, during a regular term, the defendant appeared and filed a plea, under oath, of a discharge in bankruptcy. Afterwards, on the same day, in the absence of defendant's attorney, plaintiffs moved for the following order:

"In this case, on application of plaintiffs, it is ordered that the judgment be so amended as to be levied only of the goods and chattels, lands and tenements, levied upon bv the attachment. This June 8th, 1876."

The order was granted. Before it was spread upon the minutes, defendant moved to set it aside upon the ground that, in view of the state of the case and the pleadings, it was improper, and the judgment, as amended, was irregular and unauthorized by law; that the general judgment was void, and not susceptible of amendment.

The court refused to set aside the order allowing the amendment, and to this the defendant excepted.

*Jno. L. Hopkins; B. H. Hill & Son; Candler & Thomson, for plaintiff in error.

Collier & Collier; P. L. Mynatt, for defendants.

Bleckley, Judge.

In attachment, founded on contract, where there has not been notice, replevy, or appearance, to give the court jurisdiction over the defendant's person, and the plaintiff has, nevertheless, procured the court, without the intervention of a jury, to render a general judgment, such judgment is so far prima facie void as that the defendant may, at a subsequent term, file an issuable plea, on oath, to the action, without first moving to set the judgment aside. And while such plea is undisposed of, the plaintiff cannot ignore the appearance and pleading of the defendant, and have the judgment changed, by amendment, into a special judgment against the property attached. Defendant, by the express terms of the Code, section 3310, may appear and make his defense at any time before final judgment is rendered against him; and so long as a judgment, obtained in his absence and without notice to him, is so defective that a sale wider a fi. fa. conforming to it would be void, (52 Ga. 389,) it cannot be regarded as absolutely final, though it may not be absolutely void for all purposes.

In the present case, when the plaintiffs in attachment obtained their original judgment, they were entitled to a judgment against the property attached. Code, section 3328. But they took no judgment against that. They took a general judgment against the debtor in personam. This judgment was no absolute finality to the attachment proceeding. It was a legal non sequitur. The whole logic of the record had to be revised, and a different conclusion drawn. Before this revision took place, the premises were materially...