Krutina v. Culpepper
| Decision Date | 17 February 1886 |
| Citation | 75 Ga. 602 |
| Parties | KRUTINA v. CULPEPPER, agent. |
| Court | Georgia Supreme Court |
October Term, 1885.
[Jackson C. J., being disqualified, Judge Marshall J. Clarke, of the Atlanta Circuit, presided in his stead.]
1. The ground of attachment must be sworn to positively, and the language used must be such as not to leave it doubtful whether this. requirement has been complied with. An affidavit that the attorney at law for the plaintiff in attachment " comes before the undersigned, and on oath saith that H. I. Kimball, to the best of deponent's knowledge and belief, is indebted to F. Krutina (in a sum stated), and that the said H. I. Kimball absconds," is not a sufficient compliance with the law
( a. ) The decision in Neal vs. Gordon, 60 Ga. 112, reviewed and approved.
2. Where an attachment issued, based on such an affidavit, and was levied, a judgment in attachment obtained, a fi fa. issued and levied, and a claim interposed, the claimant could move to dismiss the levy, on the ground that the attachment affidavit was defective. This does not conflict with the rule that a judgment shall not be collaterally attacked. That rule is restricted to irregularities in the judgment as the ground of objection and does not apply to objections to a judgment as being void or a mere nullity.
3. Such a motion was not objectionable on the ground that it was not made within three years from the rendition of the judgment. The claimant could not move in reference to the judgment until after the filing of the claim; and a motion by a claimant to dismiss a levy is not a motion to set aside a judgment, which must be made within three years from the rendition of such judgment
Attachments. Attorney and Client. Judgments. Claims. Practice in Superior Court. Before Judge HAMMOND. Fulton Superior Court. March Term, 1885.
Reported in the decision.
MYNATT & HOWELL; E. N. BROYLES, for plaintiff in error.
HOPKINS & GLENN, for defendant.
This is a claim case. Krutina sued out an attachment against H. I Kimball, and had it levied on the furniture in the Kimball House on December 31, 1871. While the attachment suit was pending, Crittenden filed a claim. Plaintiff obtained judgment against the property on October 26, 1872, and had a fi. fa. issued on the first of the following February. The claimant withdrew his claim on April 4, 1879, and afterwards, to-wit, on May 29, 1879, the fi. fa. was levied on the property attached. A claim was then filed by Joseph Thompson et al., through their agent, Culpepper. On motion of claimants, the levy was dismissed June 18, 1885, because the attachment affidavit was defective. The following is a copy of the affidavit:
GEORGIA-Floyd County.
J. W. H. Underwood, attorney at law for F. Krutina, comes before the undersigned, and on oath saith that H. I. Kimball, to the best of deponent's knowledge and belief, is indebted to F. Krutina in the sum of nineteen thousand four hundred and seventy-five dollars and - cents, besides interest from the- day of - 18-, and that the said H. I. Kimball absconds.
J. W. H. UNDERWOOD.
Sworn to and subscribed before me this 29th December, 1881.
THOS. J. PERRY, J. P.
This judgment dismissing the levy is assigned as error. Counsel for the plaintiff says that the judgment was erroneous for three reasons: First, that the affidavit was sufficient; second, that the motion was a collateral attack on the judgment, and, therefore, could not be made in this manner; and third, that the motion was, in its nature, a motion to set aside a judgment, and not having been made within three years from its rendition, came too late, under the act of 1876.
It was admitted by counsel for plaintiff that the affidavit was fatally defective according to the decision of this court in the case of Neal vs. Gordon, 60 Ga. 112, and the argument was made upon permission granted to review that decision. It was held in Deupree vs. Eisenach, 9 Ga 598, and in Stowers vs. Carter, 28 Ga. 351, that the affidavit must be positive as to the ground of the attachment. This ruling seems to us necessarily correct from the language of the statute. It...
To continue reading
Request your trial