Opinion
37984.
DECIDED JANUARY 15, 1960.
Attachment, etc. Augusta Municipal Court. Before Judge Cooper. August 18, 1959.
Cornelius B. Thurmond, Jr., Sanders, Thurmond Hester, for plaintiffs in error.
Claud R. Caldwell, Samuel E. Tyson, contra.
The court erred in sustaining the general demurrer to the motion to set aside the judgment in the attachment proceeding for the reason stated in division one of the opinion.
DECIDED JANUARY 15, 1960.
On December 26, 1958, an affidavit and bond in attachment were filed in the Municipal Court of the City of Augusta by Lewis G. Sumerau, through his attorney, against Paul B. Crawford. After certain property was levied on, the defendant in attachment filed his eventual condemnation money bond on December 27, 1958. The plaintiff thereafter filed his declaration in attachment alleging, among other things: "That heretofore on the 18th day of December, 1958, your petitioner filed a suit against the said defendant on the same cause of action as herein set forth and this attachment was obtained in aid of that proceeding." This declaration was subsequently amended so as to increase the amount claimed from $1,800 to $2,175. The defendant in attachment failed to file any defensive pleadings and on June 12, 1959, the court gave a common-law judgment for the plaintiff, Lewis G. Sumerau, for the full amount claimed. On June 24, 1959, the defendant Crawford filed his motion to set aside the judgment, which included the following allegations: "2. The said attachment case issued ancillary and in aid of the main case, said main case being case No. 66776-B in this Honorable Court, which said main case was filed against defendant on the 18th day of December 1959, all as alleged in paragraph 4 of plaintiff's declaration in attachment. 3. That reference made to the main case shows that defendant Paul B. Crawford filed his plea in abatement in the said main case and that in plaintiff's second amendment in said main case, which was filed on the 13th day of April, 1959, the party plaintiff in the main case was changed from Lewis G. Sumerau to Lewis G. Sumerau and Charles P. Davis, partners, d/b/a Auto Wholesale. 4. That reference to the judgment entered on the 12th day of June, 1959, in the main case, shows that said judgment is in favor of Lewis G. Sumerau and Charles P. Davis, d/b/a Auto Wholesale." The record does not show under what circumstances the amendment was allowed. The court sustained a general demurrer to the defendant's motion to set aside the judgment, and he excepts.
1. "In all cases where the plaintiff has commenced suit for recovery of a debt, and the defendant, during the pendency of such suit, shall become subject to attachment, the plaintiff may have an attachment against the defendant, and all the proceedings in relation to the same shall be as prescribed in relation to attachments where no suit is pending. A satisfaction of the judgment in the common law action shall satisfy the judgment in attachment and a satisfaction of the judgment in attachment shall satisfy the judgment in the common law action." Code § 8-104. "The rule requiring plaintiff to elect shall not apply to . . . an attachment sued out pendente lite; but the judgment in the case against the person shall set out the fact of its identity with the proceedings against the property." Code § 3-605. The motion to set aside the judgment in attachment contains allegations sufficient to show that said judgment was rendered in favor of a different party (Sumerau) from the plaintiff in the amended action for recovery of the debt itself (Sumerau Davis, d/b/a Auto Wholesale). It is therefore apparent that a satisfaction of the judgment in the action on the debt will not in law satisfy the judgment in the attachment proceeding as contemplated in Code § 8-104. Since the attachment was brought pendente lite, judgment therein should be in favor of the same parties and upon the same cause of action as the pending suit, otherwise the exception contained in Code § 3-605 would not apply. The attachment is prosecuted in the name of a natural person and not in the name of a legal entity which imports a partnership. Cf. Underwriters at Lloyds v. Strickland, 99 Ga. App. 89, 90 ( 107 S.E.2d 860) and citations. In the absence of waiver or estoppel, the affidavit in attachment is not amendable by substituting the name of the partnership for the individual, nor would it support a declaration brought in the name of the partnership. Holston Box Lumber Co. v. Vonberg Bates, 34 Ga. App. 298 (2) ( 129 S.E. 562) and cases cited. The declaration recites that the attachment was obtained in aid of a pending suit for the recovery of a debt and therefore the court in passing on the motion to set aside the judgment could properly consider matters appearing on the face of the record in the main action. Since the variance in parties appears on the face of the pleadings and is not amendable, the motion to set aside the judgment was not subject to general demurrer. Code § 110-702. Even if the proceedings in the common-law action cannot be considered a part of the record in the attachment proceedings, a motion to set aside a judgment may be predicated on an irregularity not appearing on the face of the record. The following citations represent the oldest and most authoritative rulings on the subject though there are many to the contrary: Mullis v. Bank of Chauncey, 40 Ga. App. 582 ( 150 S.E. 471); Lyons v. State, 7 Ga. App. 50 ( 66 S.E. 149); Benford v. Shiver, 13 Ga. App. 135 ( 78 S.E. 860); Chambless v. Oates Plumbing c. Co., 97 Ga. App. 80 ( 102 S.E.2d 83); Mobley v. Mobley, 9 Ga. 247; Griffin v. Sketoe, 30 Ga. 300; Dugan v. McGlann, 60 Ga. 353; Regopoulas v. State, 116 Ga. 596 ( 42 S.E. 1014); Ford v. Clark, 129 Ga. 292 ( 58 S.E. 818); Union Compress Co. v. Leffler Son, 122 Ga. 640 ( 50 S.E. 483); Simpson v. Bradley, 189 Ga. 316 ( 5 S.E.2d 893); Jackson v. Jackson, 199 Ga. 716 ( 35 S.E.2d 258); Plunkett v. Neal, 201 Ga. 752 ( 41 S.E.2d 157); Dixon v. Dixon, 211 Ga. 869 ( 89 S.E.2d 473); Wallace v. Wallace, 213 Ga. 96 (3) ( 97 S.E.2d 155).
The plaintiff contends that the defendant is estopped from setting up such variance since he has given a replevy bond. This bond was given some time prior to the amendment which changed the plaintiff in the action on the debt from an individual to a partnership, and the defendant took no further action in the attachment proceeding subsequent to this amendment. We therefore have a different situation from the estoppel appearing in Busby Son v. Elliott, 22 Ga. App. 391 (2) ( 95 S.E. 1014), and this contention is without merit. It is further argued that the defendant is now estopped because he consented to the amendment of parties in the action on the debt. However, this fact does not appear from the motion itself and consequently this matter is not properly raised by general demurrer thereto.
2. It is further contended that the demurrer to the motion to set aside the judgment should be sustained because said motion fails to set forth fully the proposed defense and the facts constituting it. Such allegations are unnecessary where the judgment is absolutely void. Henderson v. Swift Fertilizer Works, 16 Ga. App. 448 (1) ( 85 S.E. 613); Pryor v. American Trust c. Co., 15 Ga. App. 822 (2) ( 84 S.E. 312). Since the allegations set forth above will, if properly substantiated, render the judgment in the attachment proceeding void, any such defect in the defendant's motion is not fatal.
3. Other grounds in the defendant's motion to set aside the judgment include insufficient description of the property attached, failure to plead how the alleged debt arose, allowance of the amendment increasing the amount of damages claimed after the eventual condemnation money bond had been filed and failure to serve defendant with a copy of same or to allow for demurrer or objection thereto. After careful examination, we are convinced that these matters represent amendable defects or mere irregularities and are therefore not proper grounds upon which the judgment may be set aside. Code § 110-705; Johnston v. Sheppard, 22 Ga. App. 206, 207 ( 95 S.E. 743); Kolb v. Cheney, 63 Ga. 688.
For the reasons stated in division 1 the court erred in sustaining the general demurrer to the motion to set aside the judgment in the attachment proceeding.
Judgment reversed. Quillian and Nichols, JJ., concur.