Stalvey v. Varn Motors & Finance Co.

• Decision Date: 10 November 1937
• Docket Number: 26421.
• Citation: Stalvey v. Varn Motors & Finance Co., 193 S.E. 627, 56 Ga.App. 696 (Ga. App. 1937)
• Parties: STALVEY et al. v. VARN MOTORS & FINANCE CO.
• Court: Georgia Court of Appeals

193 S.E. 627

56 Ga.App. 696

STALVEY et al. v. VARN MOTORS & FINANCE CO.

No. 26421.

Court of Appeals of Georgia, First Division

November 10, 1937

Syllabus by the Court.

1. "An officer of one county may issue an attachment returnable to the courts of another." Cox v Felder, 36 Ga. 597.

2. An attachment improperly made returnable to the city court of Valdosta was amendable, after it had been returned to the proper court, to wit, the superior court of Cook county, by making it returnable to the superior court of Cook county Cook being the county in which the defendant resided.

3. "While an attachment should give directions for its return, still 'it is not this written direction to the sheriff or the constable which gives the court jurisdiction but the law."'

4. The notices of attachment and filing of declaration thereon were regular, except that they were not signed by the plaintiffs in attachment, its attorney at law, or any one as agent for it. In view of the fact that the notices conveyed in writing the information required by the statute, "pendency of the attachment and proceedings therein," and the defendants were in no manner prejudicedby the absence of a signature to the notice, the notice was sufficient to entitle the plaintiff to a judgment on the declaration filed as at common law.

5. A witness could not, over objection, testify to the contents of a typewritten signed memorandum which purported to be a statement of his account with the plaintiff when on cross-examination he admitted that he did not prepare the memorandum; that he did not know who did; that he received it through the mail, but he did not recall even the return address on the envelope; that the memorandum was not signed and that he had no independent knowledge of its contents or that the items had in fact been charged back to his account.

6. "It is not error to refuse to receive evidence not pertinent to the proceeding." Chattahoochee Valley Ry. Co. v. Bass, 9 Ga.App. 83(8), 70 S.E. 683.

7. The testimony in question, if allowed, would not alone have proved, nor would it have added to or assisted in the proof of, the claimed authority of the agent; for, by the admitted testimony relating to the proved facts and those offered to be proved, no such authority would have been shown by the whole testimony. The testimony in question would not alone have proved the authority claimed to be in the agent, nor was it a link in a chain of circumstances that would have proved the claimed authority; for there was no such chain of circumstances proved or offered to be proved as to make the testimony in question a link in the completed chain. It would thus have amounted to nothing, and was immaterial.

8. The court did not err in directing the verdict for the plaintiff.

Error from Superior Court, Cook County; W. R. Smith, Judge.

Proceeding by Varn Motors & Finance Company against T. E. Stalvey and another. To review an adverse judgment, defendants bring error.

Affirmed.

J. P. Tomlinson, of Adel, for plaintiffs in error.

Harley Langdale, J. Lundie Smith, Jr., and B. Lamar Tillman, all of Valdosta, for defendant in error.

MacINTYRE Judge.

A purchase-money attachment was sued out by Varn Motors Finance Company (transferee of an automobile note and retention title contract) against T. E. Stalvey and J. H. Stalvey. The attachment was issued on February 20, 1936, by Hon. R. G. Dickerson, judge of the city court of Valdosta, Lowndes county, and made returnable to the April term, 1936, of said city court. The attachment was levied on the automobile therein described, at Valdosta. The defendants were residents of Cook county at the time the note was executed and the attachment issued, and have since continued to reside in Cook county. They did not make bond, or appear or plead in anywise to the attachment in the city court of Valdosta. No declaration in attachment was filed in the city court of Valdosta. On May 12, 1936, the attachment was filed in the office of the clerk of the superior court of Cook county. A declaration based on said attachment was filed in the office of the clerk of the superior court of Cook county on June 2, 1936, and made returnable to the August term, 1936, of said court. There were four terms of the superior court of Cook county, to wit, on the first Mondays in February, May, August, and September. The April term of the city court of Valdosta was more than fifteen days after the levy of the attachment, and the May term of Cook superior court was more than twenty days after the levy thereunder.

A plea to the jurisdiction was filed in Cook superior court on August 3, 1936, and was amended February 6, 1937. An amendment to the writ of attachment was offered by the plaintiff on February 6, 1937, and allowed, making the writ returnable to the August term, 1936, of Cook superior court, in lieu of the April term, 1936, of the city court of Valdosta, over oral objections of defendants on the grounds (a) that "The court had no jurisdiction. (b) That the amendment was offered too late. (c) That only the Judge of the City Court of Valdosta had authority to amend the writ. (d) That the writ was originally made returnable to the April Term, 1936, of the City Court of Valdosta, and no declaration had been filed to said term of court. (e) That said case had never been transferred by the Judge of the City Court of Valdosta, or by any other judicial order, to Cook County." The notices of attachment were traversed on the ground "that they were not signed by the plaintiff or any one for it," which issue was submitted to the court on an agreed statement that the notices of attachment and filing declaration thereon were regular, except that they were not signed by the plaintiff in attachment, its attorney at law, or any one as agent for it; and that the unsigned notices were served on defendants by the sheriff of Cook county.

1. The jurisdiction and the powers of the city court of Valdosta are by the act creating that court (Ga.L.1901, p. 181, § 18) made the same as those of the superior court. This act says: "All laws upon the subject of attachments and garnishments as to any matter whatever in the superior courts of this State shall apply to said city court as if named with the superior court, so far as the nature of the city court will admit." If the plaintiff had so wished, it could have begun the attachment proceedings in Cook county, the county of the defendants' residence, and, if it wished to have the property levied on which was then in Lowndes county, should follow the provisions of the Code, § 8-210. But the plaintiff, having found the property in Lowndes county, which was other than the county of defendants' residence, wished then and there to begin the attachment proceedings in Lowndes county, and followed the provisions of sections 8-109, 8-111, 8-114, and 8-117. Under these Code sections, the plaintiff in attachment having made proper affidavit before the judge of the city court of Valdosta, Lowndes county, Ga., who is given authority by the act cited above, to take such affidavit, and the plaintiff having given bond in terms of the law, the execution should have been made returnable to the proper court of Cook county, the county of the defendants' residence. The superior court of Cook county was the proper court, and would therefore have had jurisdiction when the papers were properly returned and filed in the office of the clerk of the superior court of Cook county, Ga. Bennett v. Wheatley, 154 Ga. 591, 605, 115 S.E. 83. "Before process of attachment shall issue, an affidavit shall be made that the debtor has placed himself in a condition to be attached. Rev.Code, sec. 3200 [Code 1933, § 8-109]. Nothing is said as to the residence of the officer; section 3201 [8-111] makes it the duty of the officer before whom the affidavit is made to take bond, with good security, for the payment of damages and costs, which the defendant may sustain. Affidavit being made and bond given, the officer before whom the affidavit was made, 'or any officer authorized so to do,' may issue the attachment returnable to the proper Court. Secs. 3203 [8-114] and 3205 [8-117]. We find nothing in the statutes which prohibits an officer of one county from issuing attachments returnable to the Courts of another; and believing that the authority is one which may be for the convenience and advantage of suitors, we approve the authority thus conferred, and hold that the officers of one county, authorized by law to issue attachments, may make them returnable to the courts of another county, under the provisions regulating the issuing of attachments." Cox v. Felder, 36 Ga. 597. It might also be noted that Code, § 8-117, which deals with the return of attachments, provides for their return to courts of the county of the defendant's residence. This certainly seems to contemplate the possibility of their issuance elsewhere. The direction of the writ to "all and singular the sheriffs and constables of this State" (Code, § 8-116) carries the same suggestion.

An amendment to the writ of attachment (execution) was offered by the plaintiff in Cook superior court and allowed over objection, making said writ returnable to the August term, 1936, of Cook superior court in lieu of the April term, 1936, of the city court of Valdosta. "Formerly the attachment laws were construed strictly, one of the provisions of which was, that any attachment sued out and returned, otherwise than the Act itself prescribed, should be void. The late law, by providing that a substantial compliance with its provisions, shall be sufficient, has intentionally overturned the old doctrine." Force v. Hubbard, 26 Ga. 289, 290. See, also, Code, § 8-118. "The plaintiff in attachment shall have the right to...