Latimer v. Sweat
| Decision Date | 16 May 1906 |
| Citation | 54 S.E. 673,125 Ga. 475 |
| Parties | LATIMER v. SWEAT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where in an attachment case, it is desired to proceed to obtain a general judgment against the defendant, notice in writing should be given to him of the pendency of such attachment and of the proceedings thereon. The original notice with the entry of service upon it should be returned to the court in which the attachment is pending. Where an attachment is sued out before a justice of the peace, returnable to a city court, it is not a sufficient compliance with Civ. Code 1895 § 4557, on the day when the attachment is levied by the constable, and before it has been returned to the court or is there pending, to give notice of its issuance and levy.
Where in an attachment case, no proceedings were taken as provided by law for the purpose of obtaining a general judgment against the defendant, but the judgment entered up was both general against the defendant and specially to be enforced against the property attached, such a judgment could be amended by striking the general feature of it even after the expiration of the term when it was rendered.
The amendment of the judgment made was broader than the application and the facts required. It should be corrected accordingly.
Error from City Court of Waycross; J. C. Reynolds, Judge.
Action by J. H. Latimer against C. M. Sweat. Judgment in favor of defendant. Plaintiff brings error. Affirmed.
J. Walter Bennett, for plaintiff in error.
Jno. L. Meyers and Leon A. Wilson, for defendant in error.
LUMPKIN, J. (after stating the facts).
1. Primarily, a proceeding by attachment subjects only the property on which a levy is made, and the judgment is one to be realized from such property. A general judgment against the defendant is not rendered. The plaintiff in attachment may proceed for the purpose of obtaining a general judgment in the manner pointed out by the statute. To do this, however, he must comply with the terms of the statute. Civ. Code 1895, § 4557, declares: "The plaintiff, his agent, or attorney at law, may give notice in writing to the defendant of the pendency of such attachment and of the proceedings thereon, which shall be served, *** by giving him a copy of said notice at least ten days before final judgment on said attachment, and returning said original notice with his services entered thereon to the court in which said attachment is pending," etc. It will be observed that the notice required is of the pendency of such attachment and of the proceedings thereon, and that the return is to be made "to the court in which said attachment is pending." Such a notice takes the place of process, and brings the defendant before the court where the proceedings are. He is not required to be served with a copy of the attachment papers or of the declaration, but upon being duly notified he can obtain the information necessary to his defense by application or inquiry in the court where the case is. It is therefore important to the defendant that the case shall be actually pending in some court, in order for this notice to be of any avail to him. An attachment issued by a notary public or justice of the peace returnable to another court is not pending in such other court, within the meaning of this statute, until the papers have been returned thereto. To notify the defendant that the justice of the peace has issued an attachment, and...
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