Opinion
37670.
DECIDED JUNE 9, 1959.
Motion to set aside judgment. Richmond Superior Court. Before Judge Kennedy. March 3, 1959.
Leonard S. Counts, for plaintiffs in error.
W. C. Fleming, T. Reuben Burnside, contra.
1. Service upon a member of a partnership binds the assets of the partnership and of the individual partner who was served, but is not sufficient to constitute the basis for a judgment in personam against other members of the partnership not personally served.
2. An attachment is a proceeding in rem and binds only the property levied upon unless the defendant is served personally with notice of the pendency of the action in the manner provided by Code § 8-602. The plaintiffs in error here were not so served, and no judgment in personam could be rendered against them under any theory in this case. It was accordingly error for the trial court to deny their timely motion to set aside the judgment against them insofar as the same constituted a judgment in personam.
DECIDED JUNE 9, 1959.
P. B. Graham filed an affidavit for purchase money attachment in the sum of $3,442.92 against a described tractor-trailer as the property of B. D. Ross, H. B. Broome and L. C. Broome d/b/a Ross Trucking Company, which attachment was levied upon the property by a deputy sheriff of Richmond County. Thereafter the plaintiff filed in the case his declaration in attachment, naming the same defendants. The only service of the declaration in attachment, as shown by the record, is a notice that the declaration was filed returnable to the July term, copy of which was sent by registered mail to each of the three defendants and personally receipted for as shown by the U.S. Postmaster's receipt for registered and certified mail. The two plaintiffs in error here, H. B. Broome and L. C. Broome, filed no defensive pleadings and did not replevy the property. On the trial of the issue the Broomes made no appearance. The jury found in favor of the plaintiff against all the defendants in the sum of $2,922.68, the verdict reciting "we further find that the proceeds of the sale of said property, which was sold under quick order of sale, has been credited on said debt, to reduce it to sum above set forth." The court entered judgment on the verdict stating "that in view of the fact that proper notice of said attachment and the pendency thereof and the proceedings had thereon was given defendants, it is considered, ordered and adjudged that plaintiff do have a general judgment against the defendants and each of them . . . for the principal sum of $2,992.68." The plaintiffs in error on the same day filed a motion to set aside the judgment as an in personam judgment against them on the ground that they did not appear and plead in the attachment proceedings, did not replevy the property, and there has been no personal service upon them. The denial of this motion is assigned as error.
1. Assuming the fact most favorable to the defendant in error that the designation of the defendants as "B. D. Ross, H. B. Broome and L. C. Broome d/b/a Ross Trucking Company" imports a partnership, and that the evidence on the original trial supported this proposition, and assuming further in favor of the defendant in error, since the record does not positively refute it, that Ross, who is not a party to the motion to vacate, was properly served or did make an appearance or otherwise subject himself to the jurisdiction of the court, such service would bind all of the assets of the partnership, and all of the assets of the partner who was served or made an appearance, but would not bind the individual assets of the remaining partners unless they were individually served or otherwise brought themselves within the jurisdiction of the court. Code § 75-312; Lamar-Rankin Drug Co. v. Copeland, 7 Ga. App. 567 (2) ( 67 S.E. 703); Warren Brick Co. v. Lagarde Lime Stone Co., 12 Ga. App. 58 (2) ( 76 S.E. 761).
2. An attachment proceeding, when there is no personal service, is strictly in rem, and binds only the property upon which the attachment is levied. "When the defendant has given bond and security, or when he has appeared and made defense by himself or attorney at law, or when he has been cited to appear, the judgment rendered against him in such case shall bind all his property and shall have the same force and effect as when there has been personal service, and execution shall issue accordingly, but it shall be first levied upon the property attached. In all other cases the judgment on the attachment shall only bind the property attached, and the judgment shall be entered only against such property." Code § 8-901. The "citation" referred to in this section is the one contained in Code § 8-602. Henry v. Lennox-Haldeman Co., 116 Ga. 9, 11 ( 42 S.E. 383). As therein stated, "According to the plain provisions of the Code, in no other way is a proceeding by attachment converted into a suit authorizing a general judgment in personam." Code § 8-602 provides: "The plaintiff, his agent, or attorney at law may give notice in writing to the defendant of the pendency of such attachment and of the proceedings thereon, which shall be served personally on the defendant by the sheriff, his deputy, or a constable of the county to which said attachment is returnable, by giving him a copy of said notice at least 10 days before final judgment on said attachment, and returning said original notice with his service entered thereon to the court in which said attachment is pending, which being done, the judgment rendered upon such attachment shall have the same force and effect as judgments rendered at common law." The plaintiffs in error here were not personally served with notice of the pendency of the attachment, did not appear and defend, and did not give bond and security to replevy the property attached. An in personam judgment against them was accordingly erroneous, and a motion to set such judgment aside was a proper proceeding on their part. Wilby v. McRae, 56 Ga. App. 140 (1, 5) ( 191 S.E. 662).
The trial court erred in denying the motion of the plaintiffs in error to set aside the judgment in so far as it was a general judgment against them.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.