Opinion
15812.
MAY 23, 1947. REHEARING DENIED JUNE 12, JULY 11, 1947.
Attachment. Before Judge Almand. Fulton Superior Court. February 21, 1947.
William G. Grant, Lokey Bowden, James F. Cox, Sydney F. Keeble, and Carl B. Copeland, for plaintiffs in error.
Powell, Goldstein, Frazer Murphy, W. H. Miller, A. B. Conger, Vance Custer, and H. G. Bell, contra.
Moise, Post Gardner, Henry A. Stewart, Sapp Erwin, J. N. Peacock Jr., Leonard Farkes, Walter H. Burt, Sam Brown Lippitt, William C. McLean, Beck, Goodrich Beck, James Morrisette, McQueen McQueen, Wright McGuire, and Reuben Wright, for persons at interest, not parties.
"The defense which must be set forth by one applying to have removed an attachment issued under the provisions of § 5088 (Code 1933, § 8-401) of the Civil Code is one showing `why such attachment should not have been issued, or should be removed,' and is not a defense to the creditor's claim of a debt against the defendant." Sutton v. Cook, 159 Ga. 505, 507 ( 126 S.E. 473).
No. 15812. MAY 23, 1947. REHEARING DENIED JUNE 12, JULY 11, 1947.
Atkinson Justice being disqualified, Judge Gower was designated for this case.
The plaintiff in the court below filed a petition for attachment under the provisions of the Code, § 8-401, and alleged that the defendant was indebted to him on account of the negligent homicide of the plaintiff's daughter, and that the defendant had sold and was selling, conveying, and concealing her property liable for the payment of her debts. The lower court granted the attachment ex parte, which was levied upon certain realty, and summonses of garnishment based thereon were issued to several fire-insurance companies. The defendant thereupon filed a motion to remove the attachment, in which motion it was alleged that legal title to the real estate had never vested in the defendant, but was held by a prior grantee under a security deed. The defendant also denied any liability to the plaintiff by reason of any negligence on her part, and further denied that the plaintiff had any claim, action, or right of action against the defendant upon which an attachment could lawfully be based, and urged that by reason of the above facts the plaintiff in attachment was not a creditor of the defendant.
It was stipulated between the parties that, for the purpose of the hearing on the motion to remove the attachment, no evidence would be introduced to prove either the bona fides or the fraudulent nature of any transfer of property, and that the sole contention of the defendant in attachment was that there is no liability on the part of the defendant for the homicide of the plaintiff's daughter.
On the hearings both parties introduced evidence relating to the validity or invalidity of the cause of action, after which the court entered the following order: "1. On motion of Mrs. Annie Lee Irwin and Arlington Corporation to dismiss the levy of attachment. It appears that at the time the property described in the motion, known as the Winecoff Hotel property, was levied on as the property of Annie Lee Irwin, legal title to said property was in the Life and Casualty Ins. Co. of Tennessee to secure a loan. Therefore, there being no legal title in the said Mrs. Irwin, the levy on said property is dismissed. 2. On motion to dissolve the attachment. The court is of the opinion that under the evidence submitted and the law applicable thereto the plaintiffs have made out a prima facie case of liability on the part of the defendants against whom they are claiming damages, and that the facts and the law applicable thereto are sufficient, for the questions of liability, proximate cause, etc., are ones that should be passed upon by a jury. Therefore, the motion to dissolve and dismiss the entire attachment proceedings is overruled. 3. On the motion of Life and Casualty Ins. Co. of Tennessee to dissolve the garnishments as against the fire-insurance companies. It appears from the evidence that the amount of fire insurance upon which garnishments have been run amounts to about double the principal sum of the indebtedness to the Life and Casualty Ins. Co. of Tennessee, and said company can file claim to the proceeds of such fire insurance in the garnishment proceedings. It is ordered that the motion of said company to dissolve the said garnishments be and is hereby overruled."
The defendants in attachment assign error on the second paragraph of said order, overruling and denying the petition to remove the attachment, upon the ground that it was contrary to law, in that the evidence demanded a finding that the plaintiff in attachment was not a creditor of the defendant; and upon the further ground that the court failed to pass upon and declare unconstitutional certain provisions of the Code relied upon in part by the plaintiff in attachment for the purpose of showing the defendant's liability, which statutory provisions were then and there attacked as being unconstitutional.
The statutory law of this State provides for the issuance and levy of ordinary attachments under a number of circumstances enumerated under the Code, § 8-101, and the procedure to be followed in the exercise of this remedy is set forth in the succeeding Code sections, including by § 8-111 the giving of an attachment bond with good security by the party seeking the attachment, "conditioned to pay such defendant all damages that he may sustain and also all costs that may be incurred by him in consequence of suing out the attachment, in the event the plaintiff shall fail to recover in said case." By the Code, § 8-401 et seq., an additional ground, referred to by Judge Bleckley as a special attachment (Loeb v. Smith Bros. Co., 78 Ga. 504, 511, 3 S.E. 458) is established under the same rules as to giving bond, etc., wherein the right is given to apply for an attachment to the judge of the superior court whenever a debtor is fraudulently seeking to dispose of or encumber his property. In this form of special attachment, the judge may pass an ex parte judicial order on the application and the evidence accompanying the same, authorizing the clerk in his ministerial capacity to issue the attachment ( Haslett v. Rodgers, 107 Ga. 239, 242, 33 S.E. 44) or, as provided by the Code, § 8-403, may cause a hearing to be had before him as to the propriety of granting the same prior to taking action thereon. By § 8-405 provision is made for the removal of such an attachment where the grant has been made ex parte, that is without a hearing, in which case the defendant seeking such removal should make application to the judge, "stating fully and distinctly the grounds of his defense, showing why such attachment should not have been issued, or should be removed." This section provides that, upon the hearing of such a motion to remove, the judge shall act as in applications for injunction. The provisions of the Code sections as to the removal of such attachment which has been granted ex parte merely provide for an expeditious interlocutory hearing upon the question as to whether the writ has been improvidently granted, and that without awaiting the trial of the issue made on any traverse of "the truth of the affidavit in relation to the ground upon which the attachment is issued." as provided for by § 8-605 of the Code. As was said by Mr. Justice Hall in Falvey v. Adamson, 73 Ga. 493, 496: "The statute in question evidently contemplates that the plaintiff shall have power to reach property so situated, and in that connection it provides a mode and a tribunal by which the defendant may summarily traverse the ground upon which the attachment issued." (Italics ours.) This section for the removal of attachments against fraudulent debtors manifestly is not intended to supersede the protection provided the defendant by the giving of the bond with security to save him harmless from all damages that he might sustain in the event the plaintiff should fail to recover on his declaration in attachment. As was said in Sutton v. Cook, 159 Ga. 505, 507 ( 126 S.E. 473), "The defense which must be set forth by one applying to have removed an attachment issued under the provisions of § 5088 [Code 1933, § 8-401] of the Civil Code is one showing `why such attachment should not have been issued, or should be removed,' and is not a defense to the creditor's claim of a debt against the defendant." (Italics ours.) That the question for determination either at an interlocutory hearing on a petition to remove the attachment, or even on the subsequent trial of a traverse attacking the same "in relation to the grounds upon which the attachment issued," pertains solely to the sufficiency of the "ground upon which the attachment issued," and not to the validity of the claim of the plaintiff in attachment is also clearly indicated by the ruling of this court in Irvin v. Howard, 37 Ga. 18 (6), 24 (6), where it was said in respect to the affidavit in attachment that it "need not set forth the cause of action; that is left for the declaration to be subsequently filed in the case;" citing Dobbs v. Justices, 17 Ga. 630. Manifestly, if a mere claim of indebtedness by the affidavit in attachment be sufficient, without in anywise setting forth the nature of the cause of action, an attack upon the attachment at an interlocutory hearing should not be permitted to enter the field made by the declaration in attachment, where the validity of the plaintiff's claim can alone be properly determined. That the law is more stringent as related to the ground of attachments as against alleged fraudulent debtors than it is in the case of attachment issued upon the other stated grounds, is manifest. This is clearly shown by the provision of law requiring an application for the grant of a fraudulent debtor's attachment before it can be properly issued. If issued ex parte, that is without a hearing, the law further protects the debtor by providing for a petition to remove the attachment, and this remedy merely furnishes an expeditious interlocutory hearing, as in injunction cases, on the issue made by a traverse "to the ground upon which the attachment issued," as provided for by the Code, § 8-605, and in no way relates to the issue of indebtedness as made by the declaration in attachment. In other words, the grant of attachment can be attacked in all forms of attachment by a traverse of the ground of attachment under § 8-605. In cases of attachment against alleged fraudulent debtors, there is one, but only one, distinction. In the latter form of attachment, provision is made for a permit before the attachment can be issued; and, in cases where the permit is granted ex parte, provision is made for a speedy dissolution of the attachment by a preliminary and expeditious interlocutory hearing as in cases of injunction prior to the final hearing on the traverse attacking the ground upon which the attachment issued. With this one exception the proceedings in all forms of attachment are identical, and in all cases any issue upon the claim of indebtedness must await the trial on the declaration in attachment.
On the hearing of the instant petition, seeking to remove the attachment, it was stipulated between the parties that, "for the purposes of this hearing, no proof on the question of whether or not the transfer from defendant in attachment to the Arlington Corporation was fraudulent shall be submitted; and that the sole contention of defendant in attachment is that there is no liability on her part for the homicide of plaintiff's daughter." It therefore follows, under the rules of law above stated, that the judge before whom the motion to remove was heard did not err in overruling it. The plaintiff in attachment, while now insisting on the rule of law as hereinbefore set forth, did nevertheless on the hearing,, as did the defendant in attachment, proceed to offer voluminous evidence by affidavit with respect to the nature of the plaintiff's cause of action. The movant in the court below, now plaintiff in error, takes no exception to this procedure, but on the contrary, one of his exceptions is based on the ground that the court refused to pass on the attack made on the constitutionality of certain statutory provisions relied upon in part by the plaintiff in attachment. The scope of the ruling now made by this court in affirming the action of the judge in overruling the motion to remove the attachment is limited to the one reason hereinbefore stated; and no other adjudication by the judge in the court below to which exceptions are taken shall be held as prejudicing the rights of any party litigant.
Judgment affirmed. Candler, Justice, and Gower, Judge, concur. Bell and Head, Justices, concur specially. Duckworth, Presiding Justice, and Wyatt, Justice, dissent.
On the application to dissolve the attachment, Mrs. Irwin contended that because of conditions and restrictions upon her ownership of the hotel property, she was as a matter of law in nowise responsible for any negligence that may have existed with respect to its construction or maintenance at the time of the fire, and hence could not (as she insists) be lawfully found to be a debtor of the plaintiff in attachment.
The foregoing opinion as prepared by the Chief Justice rules in effect that such contention as to non-liability was not a proper matter for consideration by the judge on the issue as to removal of the attachment; and, as I understand the opinion, it states the rule as one that would be applicable to all hearings for grant or removal of an attachment under the fraudulent debtors' attachment act. To this I cannot agree. Under the fraudulent debtors' act, the very ground of attachment is fraud, or alleged fraud, and therefore it seems to me that on the hearing before the judge evidence of non-liability would be admissible equally with any other fact or circumstance that would tend to refute the charge of fraud. Code, §§ 8-401, 8-403, 8-405.
As a matter of fact, if the defendant could show that he is not indebted to the plaintiff at all, this, it seems, would be very strong if not conclusive, evidence that the alleged transfer or conveyance was not fraudulent. Of course, the admission and consideration of evidence of this nature on the hearing before the judge would not affect the final trial or verdict under the declaration in attachment, and it would be admissible even before the judge only for the purpose of illustrating the issue as to fraud.
The decision in Sutton v. Cook, 159 Ga. 505 ( 126 S.E. 473), is not, in my opinion, authority for the proposition that such evidence is not relevant at all upon such a hearing before the judge. In that case the indebtedness was admitted. The defendant in attachment filed an application for removal, and merely alleged therein various facts and circumstances for the purpose of illustrating that he had not acted fraudulently in making the transfer or conveyance that was assailed by the plaintiff in attachment, and alleged nothing as an ultimate defense. A general demurrer to this application was filed; and it was apparently insisted thereunder that the application did not constitute a good defense to the alleged claim of indebtedness, and for that reason was insufficient as an application for removal. As I understand the decision, it simply held that an application for removal is not fatally defective and subject to demurrer, merely because it does not set forth a defense to the alleged claim of indebtedness; but that, on the contrary, it would be good against general demurrer if it alleges any facts showing "why such attachment should not have been issued or should be removed." In other words, it was held only that a defense to the alleged claim of indebtedness is not one that must be made in an application for such removal; and there was no ruling whatever to the effect that such defense could not be made therein as against the charge of fraud. Moreover, the latter question was in no way presented for decision, and anything that might have been said regarding it would have been a mere dictum. The decisions in Dobbs v. The Justices, 17 Ga. 630 (3), and Irvin v. Howard, 37 Ga. 18 (6), do not in my opinion have any bearing upon this question.
Notwithstanding the views that I have just expressed touching what I think should be the general rule as to proof of non-liability upon such a hearing — that is, that such evidence would be admissible for the purpose of refuting the charge of fraud but for that purpose only — it appears that the parties in the instant case stipulated that, for the purpose of the hearing on the motion to remove the attachment, no evidence would be introduced to prove either the bona fides or the fraudulent nature of any transfer of property, and that the sole contention of the defendant in attachment was that there is no liability on the part of the defendant for the homicide of the plaintiff's daughter.
As I construe this statement, the defendant sought to remove the attachment merely by showing non-liability, entirely apart from any question of fraud. I agree with the Chief Justice and those concurring with him, that the attachment could not be removed by such proof alone. Furthermore, all issues as to the bona fides or the fraudulent nature of the transfer having been eliminated by the parties for the purpose of the hearing, I agree also that the judgment of the trial court should be affirmed, even though the reasons stated for such affirmance may be different from those given by the trial judge in his order. Coker v. Atlanta, 186 Ga. 473 (1), 475 ( 198 S.E. 74).
I am authorized to say that this special concurrence represents the views of Justice Head.