Wright v. Brown

• Decision Date: 10 February 1910
• Docket Number: (No. 2,108.)
• Citation: 66 S.E. 1034,7 Ga.App. 389
• Court: Georgia Court of Appeals
• Parties: WRIGHT, WILLIAMS & WADLEY. v. BROWN, Sheriff.

7 Ga.App. 389

66 S.E. 1034

WRIGHT, WILLIAMS & WADLEY.

v.BROWN, Sheriff.

(No. 2, 108.)

Court of Appeals of Georgia.

Feb. 10, 1910.

(Syllabus by the Court.)

1. Attachment (§§ 212, 291^*) — Claim by Third Person—Scope op Remedy.

Where an attachment has been levied upon personal property, and a claim is interposed, the regularity of the attachment is ordinarily of no concern to the claimant; he being only interested in showing that the property levied upon is not subject. Therefore the claimant cannot move to dismiss or quash the attachment because of any apparent defect; his remedy being to have the levy dismissed. Rossiter, Mac-Govern & Co. v. Carrollton Electric Light Co., 5 Ga. App. 393, 63 S. E. 233, and cases cited. But where no declaration in attachment has been filed as required by the statute, no suit is pending in which a valid judgment can he rendered for the plaintiff, and for this reason the attachment loses its lien and cannot claim money held by the sheriff for distribution under a money rule. Civ. Code 1895, {j 4556; Russell v. Faulkner & Son, 89 Ga. 818, 15 S. E. 756; Banks v. Hunt, 70 Ga. 743; Callaway v. Maxwell, Adm'r, 123 Ga. 208, 51 S. E. 320.

[Ed. Note.—For other cases, see Attachment, Dec. Dig. §§ 212, 291.*]

2. Attachment (§ 202*)—Money Rules.

Money rules are in the nature of equitable proceedings, and where a fund is in the hands of the sheriff arising from the sale of a debtor's property for distribution by the court among his creditors, and there is no lien on the fund or the property from the sale of which the fund was realized, it should he awarded to either the defendant or his creditors who are equitably entitled to receive it.

[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 655-657; Dec. Dig. § 202.*]

3. Attachment (§ 202*)—Sale under Short Order—Failure to File Declaration.

Where the sheriff has levied an attachment upon personal property of a perishable nature, and has sold it under what is commonly known as a "short order, " and the attachment proceeding subsequently becomes void and loses its lien because of the failure of the plaintiff in attachment to file his declaration at the first term, the money remaining in the hands of the sheriff primarily belongs to the defendant in attachment; but if the title to the property sold as the property of the defendant in attachment was in a third person by reason of his having reserved it in writing as security for the purchase money, that third person may waive his right to follow the property and recover it from the purchaser at the sale, and in that event can on money rule have the proceeds of the sale applied upon his debt, and this is true, notwithstanding he gave public notice on the day of the sale that whoever bought would buy subject to his title.

[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 655-657; Dec. Dig. § 202.*] Error from City Court of Fayetteville; W. B. Hollingsworth, Judge.

Action by Wright, Williams & Wadley, claimants, against F. B. Brown, sheriff. From an adverse judgment, claimants bring error. Reversed.

This was a contest between the creditors of Barbee & Son, and arose on the hearing of a rule against the sheriff. Certain creditors of Barbee & Son sued out attachments and had them levied upon six mules as the personal property of the defendants. After the levy of the attachments Wright, Williams & Wadley filed a...