Sutton v. Gunn

• Decision Date: 23 February 1891
• Citation: 12 S.E. 979,86 Ga. 652
• Parties: SUTTON v. GUNN.
• Court: Georgia Supreme Court

12 S.E. 979

86 Ga. 652

SUTTON v. GUNN.

Supreme Court of Georgia

February 23, 1891

Syllabus by the Court.

1. The plaintiff in attachment for purchase money may entitle himself to a general judgment against the defendant by giving notice, as prescribed in section 3309 of the Code.

2. The city court of Macon, being invested by statute with power to hear, determine, and give judgment in all civil cases of which it has jurisdiction, unless a trial by jury is demanded a judgment rendered by the judge without a jury in an attachment case, though the foundation of the attachment be a conditional note, is valid where due notice has been given of the proceedings, and there is no appearance, plea, or demand for a jury trial. Although the letter of the statute requires the demand to be made on the first day of the term to which the case is returnable this does not bind the defendant to make the demand before he is served with notice, but he will be allowed to make it afterwards, where the object is to obtain a general judgment against him. (a) Demand as a condition of trial by jury is constitutional.

3. Process need not be annexed to a declaration in attachment notice, as required by the statute, will suffice.

4. The declaration is in time if filed on the last day of the first term.

5. Illiteracy of a defendant in attachment is no excuse for not knowing the contents of a written notice and making defense in due time.

Error from city court of Macon; HARRIS, Judge.

H. F Strohecker, for plaintiff in error.

Hardeman & Nottingham, for defendant in error.

BLECKLEY C.J.

1. The law of attachment for purchase money is the same as the general law of attachment, except in certain particulars,--such as the grounds upon which the writ is issued, and the property on which it is to be levied. Code, § 3296. That a general judgment can be recovered in such a case, where there is voluntary appearance by the defendant followed by pleading, is held in Joseph v. Stein, 52 Ga. 332. Also where the property has been replevied. Camp v. Cahn, 53 Ga. 558. In the present case there was neither appearance nor replevy, but there was written notice given more than 10 days before final judgment, which according to section 3309 of the Code, has the same effect upon the plaintiff's right to a general judgment. It may therefore be affirmed that the plaintiff in an attachment for purchase money may, by giving the defendant the notice prescribed in the Code, obtain a general judgment for the amount of his debt.

2. The judgment was rendered by the city court of Macon without a jury. There could be no question of the power to do this if the contract declared upon was an unconditional contract in writing. Const. art. 6, § 4, par. 7; Code, § 5145; Juchter v. Boehm, 63 Ga. 71; Dortic v Lockwood, 61 Ga. 293. As to other contracts, the power depends upon the statute creating the city court of Macon and the application of that statute to a case like this. It declares that "the judge of said city court shall have power and authority to determine all civil causes of which the said court has jurisdiction, and to give judgment and execution therein: provided, always, that either party in any cause shall be entitled to a trial by jury in said court upon entering a demand therefor by himself or his attorney, in writing, on or before the call of the docket the first day of the term of said court at the term to which the cause is returnable, in all cases where such party is entitled to a trial by jury under the constitution and laws of this state." Acts 1884-85, p. 473. The attachment was returnable to the June term, but up to that time it had been served as an attachment only. The notice required as a foundation for a general judgment had not been given, and of course it was not obligatory upon the defendants to demand a trial by jury upon the first day of that term, so far as any general judgment to be afterwards rendered was concerned. It may be that such a demand would have been necessary to make it incumbent upon the court to submit the case to a jury before rendering a special judgment binding only on the property attached. It is obvious that the case, as a complete proceeding for a general judgment, did not exist till the notice was served. That service took place on August 28th, and this was only a few days before the beginning of the second term; that term being fixed by law to commence on the first Monday in September. Were the defendants bound to make their demand for a jury on the first day of that term? We think not. Ordinary process from the city court of Macon is required to be served the same length of time as process from the superior court,--that is, 15 days before the term to which the case is returnable. As to ordinary cases, the provision relative to the time of demand would be reasonable, and the time afforded ample. But it cannot be held that these defendants lost their right to trial by jury by failure to make a demand on the first day of the September term. The statute contains no express provision for demand at any time after the first day of a term. It, however, invests the court with power to try and render...