Smith v. Brown

• Decision Date: 16 August 1895
• Citation: 96 Ga. 274,23 S.E. 849
• Parties: SMITH v. BROWN.
• Court: Georgia Supreme Court

23 S.E. 849

96 Ga. 274

SMITH

v.BROWN.

Supreme Court of Georgia.

Aug. 16, 1895.

Attachment—Notice of Levy—Illegality.

1. It is, under that portion of the constitution embodied in section 4995 of the Code, essential to the validity of a judgment rendered in an attachment case for the purchase money of land that the defendant in attachment should have notice of the proceeding. A mere entry by the sheriff on the attachment that he had levied the same upon the land, followed by another entry stating that he had "notified defendant of theabove levy by mail, " does not amount to such

notice; nor is this, without more, sufficient to constitute a legal levy of the process.

2. It was error to sustain a demurrer to an affidavit of illegality to a judgment rendered in such a case, the affidavit alleging, in substance, that when the attachment was sued out the defendant was in possession of the land; that he had never been served with any "copy of the suit against him, " or with any process or notice; that he did not appear in the case; that he has a valid defense to the claim on which the judgment was rendered [setting it forth]; that there was never any levy of the attachment; and that he had no notice, by mail or otherwise, of the levy of the same, or of the attachment proceedings, until after the judgment against him thereon had been rendered. (Syllabus by the Court.)

Error from superior court, Muscogee county; W. B. Butt, Judge.

Execution, on the application of T. G. Brown, executor, against B. J. Smith. There was a judgment sustaining a demurrer to defendant's affidavit of illegality, and defendant brings error. Brought forward from the last term. Code, §§ 4271a-4271c. Reversed.

Thornton & McMichael, for plaintiff in error. Wheeler Williams, for defendant in error.

LUMPKIN, J. The levy of an execution Issued upon a judgment rendered in an attachment case, which was begun by an alleged levy upon the defendant's land, was met by an affidavit of illegality, the substance of which is above set forth. The question for our determination is whether or not the affidavit ought to have been sustained.

The proposition that our Code neither provides for, nor renders necessary, any notice to the defendant in an attachment proceeding, is not correct If it were so, it would seem to follow, inevitably, that our attachment laws are violative of the constitutional provision which declares that no person shall be deprived of his property without due process of law. We do not, as we understand these laws, regard them as unconstitutional. Actual notice, by personal service, is not indispensable, but the requirements of the constitution are met by provision for constructive notice. Our attachment laws doubtless contemplate that this kind of notice will result from a seizure of the defendant's property, on the idea that from such seizure he will be sure to gain information of the pending attachment proceedings. Without a legal seizure, evidently, there can be no such constructive notice; and therefore the levy of an attachment, to be effectual as notice of a pending suit, must amount, in a legal sense, to a seizure of the defendant's property. There is no difficulty in making an actual seizure of personal chattels; but, owing to the difficulty of making such a seizure of laud, the law has invented the fiction of constructive seizure, which may be accomplished in many ways. For instance, the officer, armed with the process may enter upon the land, exhibit his warrant of authority to the owner or the tenant in possession, at the same time declaring his intention of levying the writ in his hands, and thereby reducing the possession of the property to the custody of the court Or, as is sometimes provided by statute, when the land sought to be seized is vacant the officer may enter and proclaim his act by posting notices of seizure upon each separate parcel. These illustrations are by no means exhaustive, for the statutes of several of the states of the Union provide various other methods of accomplishing the constructive seizure of land.

As to the present case, it is enough to say that the attempt to levy made by the officer does not come within any definition of ...