Montague v. Cummings

• Decision Date: 09 December 1903
• Citation: 45 S.E. 979,119 Ga. 139
• Parties: MONTAGUE. v. CUMMINGS.
• Court: Georgia Supreme Court

45 S.E. 979

119 Ga. 139

MONTAGUE.

v.CUMMINGS.

Supreme Court of Georgia.

Dec. 9, 1903.

WRONGFUL LEVY—ACTION FOR DAMAGES— ABUSE OF PROCESS.

1. The plaintiff's action was barred by the statute of limitations, and should have been dismissed.

(Syllabus by the Court.)

Error from Superior Court, Dade County; A. W. Fite, Judge.

Action by Thomas ummings against T. G. Montague. Judgment for plaintiff, and defendant brings error. Reversed.

J. Hodge McLean, for plaintiff in error.

R. J. & J. McCamy and J. P. Jacoway, for defendant in error.

CANDLER, J. On June 17, 1902, Cum-mings, the defendant in error, sued out an attachment in the county court of Dade county against Montague and Bush, both of whom were residents of Tennessee, and the latter the sheriff of Hamilton county in that state. At the return term he filed his declaration in attachment, in which damages in the sum of $2,000 were claimed "by reason of an illegal levy of a certain execution against the said Thomas Cummings et al. and in favor of the said T. G. Montague, by process of garnishment, as will be shown hereafter." The declaration further alleged that Bush, as sheriff, by the direction of Montague, did, on the 3d day of March, 1900, levy a certain execution issued from the courts of Tennessee in favor of Montague and others and against the plaintiff and others for about $1,200, by process of garnishment, which garnishment was served upon various parties therein set forth. These parties, it was alleged, were debtors of the plaintiff, and the levy was in violation of the laws of Tennessee. To this declaration Montague filed demurrers, both general and special, and alsoa plea in abatement. Various questions are made therein, but for the purposes of this decision it is necessary for us to pass on but one of them, as the ruling thereon disposes of the act

We think that the action was barred by the statute of limitations. The damage alleged in the petition is that the plaintiff was deprived of the use of the funds which it was claimed were in the hands of the parties on whom the process of garnishment was served, and that "his character in the commercial world was greatly damaged." This case was argued before us on the assumption that it was a suit for damages for a malicious abuse of a legal process, and we will so treat it. It claimed damages of a purely personal nature. Whether the limitation imposed upon such actions by the law of Tennessee or that of the Georgia law is applicable to the case in hand does not seem to have been clear to counsel for the plaintiff in error, as he contends that under either law the action was barred. In Selma R. Co. v. Lacey, 49 Ga. 107, it was held that where the law of the state which gives the right to recover limits the time within which an action may be instituted to one year from the time the right of action accrued, such a suit could not be brought in this state after the lapse of that time. This ruling was followed and approved in Akin v. Freeman, 49 Ga. 65, and again in the case of O'Shields v. Georgia Pacific R. Co., 83 Ga. 625, 10 & E. 268, 6 L. R. A. 152. The case last cited, however, while approving the holding in the Lacey Case, differentiates cases where the statute which creates or confers the right of action limits the duration of such right to a prescribed time from those where the statute creating the right relies for a limitation upon a statute of a general nature. Generally, in applying a statute of...