W. B. Parham & Co v. Potts-thompson Liquor Co

• Decision Date: 15 January 1907
• Citation: 127 Ga. 303,56 S.E. 460
• Court: Georgia Supreme Court
• Parties: W. B. PARHAM & CO. v. POTTS-THOMPSON LIQUOR CO.

127 Ga. 303

56 S.E. 460

W. B. PARHAM & CO.

v.POTTS-THOMPSON LIQUOR CO.

Supreme Court of Georgia.

Jan. 15, 1907.

1. Pleading—Indefinite Allegations.

An averment in a pleading that a named statute is "unconstitutional and void" is too vague and indefinite to raise any question for determination. Newkirk v. So. Ry. Co., 48 S. E. 426, 120 Ga. 1048.

[Ed. Note.—For cases in point, see Cent. Dig, vol. 39, Pleading, §§ 17, 39.]

2. Attachment—Claim of Third Party.

In eases of attachment, a claim may be interposed either before or after judgment Civ. Code 1895, § 4574.

[Ed. Note.—For cases in point, see Cent. Dig, vol. 5, Attachment §§ 1070-1072.]

3. Same—Issues.

Where a claim la interposed to the levy of an attachment before judgment, the issue is whether the property levied on is the property of the claimant or of the defendant in attachment, and the issue so made is not affected by a subsequent judgment which did not cause the levy, even though such judgment be illegal. If, on the trial of the claim case, the property is found subject, the attaching creditor cannot proceed to make his money out of the property until a valid judgment has been obtained; and, if that which has already been obtained is for any reason void, another judgment must be sought. Cecil v. Gazan, 71 Ga. 031.

4. Jury—Right to Jury Trial.

Under the Constitution of 1868, which authorized a judgment by the court in all cases founded on a contract, where there was no issuable defense filed on oath, a judgment in an attachment case which was founded on a contract could be rendered by the court without a jury. Taylor v. Bell, 62 Ga. 159 (2), and citations.

5. Same.

Under the Constitution of 1877 the authority of the superior court to render a judgment without a jury is restricted to those cases which are founded on unconditional contracts in writing, and in which no issuable defense has been filed on oath. Daniel v. Hochstadter, 73 Ga. 144 (2).

6. Attachment"—Levy—Claim Case.

When there has been a levy, described as being upon certain barrels and half barrels, "each about half full, " but with no statement as to the actual contents, the levy is to be treated as a levy upon the barrels and contents; and, upon the trial of a claim case arising under such a levy, it is not error to admit evidence showing what were the contents of such barrels.

7. Fraudulent Conveyances — Sale in Bulk.

Bar fixtures, safes, desks, cash registers, cigar cases, pool tables, refrigerators, and the like, used in connection with a business to which they are appropriate, in facilitating the operation of such business and the sale of the goods connected therewith, and included in a sale with the goods, are a part of a "stock of goods, wares, and merchandise, " within the meaning of the act of 1903 (Acts 1903, p. 93), regulating the sale of stocks of goods, wares, and merchandise in bulk.

8. Same.

There being evidence that the stock of goods, wares, and merchandise in controversy was sold in bulk, and the terms of the act above referred to were not complied with, as against a creditor of the vendor the sale was fraudulent, no title passed, and the articles which were the subject-matter of the sale were subject to levy as the property of the vendor.

9. Attachment — Property Subject — Evidence.

The evidence demanded a finding that the property was subject to the attachment, and there was no error in directing...