Wilson v. Stricker & Co.

• Decision Date: 28 February 1881
• Citation: 66 Ga. 575
• Court: Georgia Supreme Court
• Parties: Wilson, assignee. vs. Stricker & Company et al.

66 Ga. 575

Wilson, assignee. vs. Stricker & Company et al.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

Attachment. Pleading. Judgment. Verdict. Evidence. Before Judge hillyer. Fulton Superior Court October term, 1880.

Wilson, assignee in bankruptcy of Tinckham, moved to set aside two judgments in attachment obtained against Tinckham, one by Stricker & Co., the other by Louis & Co. The motions were heard together. The principal grounds were as follows:

(1.) Because there was no bill of particulars filed with the petition or declaration, nor with the attachment.

(2.) Because it was irregular and illegal to issue two attachments for different portions of the same account; and no declaration was filed in either of said attachment proceedings; and one declaration averring in the aggregate the sum of both said attachments was illegal and unauthorized, especially as no order of court was taken, authorizing the consolidation of the two. [On February 2nd, 1866, a member of the firm of Strieker & Co., sued out an attachment against Tinckham for $2142.45. On February 8th, he again made an affidavit for attachment, stating that in his former affidavit he had made a mistake of $900.00. Thereupon attachment issued for that sum, and was levied. A single declaration was filed to cover both levies.]

(3.) Because the judgment in said case was not authorized by the pleadings, nor the proceedings preceding it.

(4.) Because there was no valid levy of the attachment for $900.00, as it was levied, if at all, before issued, and before the affidavit in attachment was made. [The attachment was dated February 8th, 1866, while the levy was dated February 2nd, 1866.]

(5.) Because neither the declaration, verdict nor judgment sets out or describes the property sought to be condemned and subjected to the claim of plaintiff in attachment.

When the motions came on to be heard, the levy of the Louis & Co. attachment stated that it was on a house, etc., "and also the stock of goods hereto attached;" but there was no list or invoice attached, while there was such an invoice attached to the Stricker & Co. levy. The court admitted parol testimony to show that at the time of the levy of the Louis & Co., attachment, the sheriff attached to his levy the same invoice or list of goods as that attached to the levy in the case of Stricker & Co.

The motion was overruled, and movants excepted.

E. N. Broyles; Reuben Arnold, for plaintiff in error.

Jno. L. Hopkins; McCay & Abbott, for defendants.

Crawford, Justice.

At the October term, 1866, of Fulton superior court, two judgments in attachment were obtained against John T. Tinckman, one by Strieker & Co., for $2,856.00, the other by A. Louis & Co., for $1,664.64.

At the October term, 1868, motions were made in each case by James. B. Wilson, the assignee in bankruptcy of the said Tinckham, to set aside these judgments. The motions lingered on the dockets until the last November term of said court, when the judge sitting as court and jury by consent, tried them together and decided against the motion to set aside, and the movant excepted.

The controlling grounds of the motion were, that there were no bills of particulars attached to the declarations; that the declarations themselves were not such as the law requires in cases of attachment; that the verdicts and judgments rendered did not sufficiently describe the property condemned to sale. Besides these general grounds, which were applicable to both the judgments, there were others which were made to them separately. We will dispose of them in their order.

1. In so far as the failure to attach bills of particulars to the declarations, it was ruled as early as 3 Kelly 79, that such failure was not a good ground to set aside a judgment, and we fully concur in that ruling.

2. The next ground insisted upon is, that the declarations were wholly defective. They set out that the " plaintiffs in attachment complain of the said Tinckham, defendant in attachment, who resides out of the State, and who has been attached to answer in an action on promises." There is no prayer for judgment of any kind, and no other or further reference or...