McDonald v. W.W. Kimball Co., Inc.

• Decision Date: 17 September 1915
• Docket Number: 573.
• Parties: MCDONALD v. W. W. KIMBALL CO., INC.
• Court: Georgia Supreme Court

86 S.E. 234

144 Ga. 105

MCDONALD v. W. W. KIMBALL CO., INC.

No. 573.

Supreme Court of Georgia

September 17, 1915

Syllabus by the Court.

An attachment for purchase money was issued by a justice of the peace, and made returnable to the superior court. It was based upon an affidavit containing the following "Personally appeared P. T. Chance, who on oath says that he is agent for W. W. Kimball Company, Incorporated. Deponent further says that, to the best of his knowledge and belief Mrs. J. T. Bateman, of said county, is indebted to said W. W Kimball Company, Incorporated, in the sum of one hundred and fifteen & no/100 dollars ($115.00) principal, besides interest at 6 per cent. from August 10, 1910; that said debt was created by said Mrs. J. T. Bateman by the purchase of the following property to wit, one piano made by W. W. Kimball Co., No. 58644, style Arion; that said debt is due, and that said Mrs. J. T. Bateman is in possession of said property and deponent makes this affidavit that an attachment for purchase money may issue in favor of W. W. Kimball Company Incorporated, against said property in terms of the law." The attachment was levied by a constable. His return recited the fact of levy, described the property as it was described in the affidavit, and recited that "said property was pointed out by plaintiff's agent as the property as described in within affidavit for purchase money, and found in possession of said defendant." The defendant was allowed to retain the property, upon giving bond with security for double the amount of the sworn value of the property, conditioned "to pay plaintiff the amount of the judgment and cost that he may recover in said case." A declaration in attachment was duly filed. The defendant filed an answer to the declaration. At the trial the jury returned a verdict for the plaintiff "against the defendant and her bondsman" for the amount sworn to be due in the affidavit for attachment, and judgment was duly entered thereon. Immediately after the return of the verdict, and during the term in which it was rendered, the surety on the bond moved to arrest the judgment against him, on the following grounds: (a) Because in the affidavit which was made by the attorney of plaintiff the ground of attachment was sworn to according to the best of the knowledge and belief of the deponent, when the law requires that the grounds of attachment be sworn to positively; (b) because the return of the constable is insufficient in law, in that it does not state that the property levied on is the property of defendant, nor does it state the amount of interest the defendant has in the property. The judge overruled the motion in arrest of judgment, and error was assigned. Held:

"When an attachment has been levied upon the property of a defendant, it shall be the duty of the officer levying the same to deliver the property so levied upon to the defendant upon his giving bond, with good security, payable to the plaintiff in attachment, obligating themselves to pay the plaintiff the amount of the judgment and costs that he may recover in said case; * * * and the officer taking said bond shall return the same with said attachment to the court to which the same is made returnable, and it shall be lawful for the plaintiff to take judgment against the defendant and his securities upon said bond for the amount of the judgment he may recover in his said attachment case." Civ. Code 1910, § 5113. The bond executed by the defendant was a...