Opinion
39622.
DECIDED SEPTEMBER 5, 1962. REHEARING DENIED SEPTEMBER 21, 1962.
Attachment, etc. Chattooga Superior Court. Before Judge Fariss.
Marson G. Dunaway, Jr., for plaintiff in error.
Robert Edward Surles, contra.
Here the affidavit to the writ for attachment was not made before a judicial officer; there was no return of the writ, and no declaration in attachment made. For any one of these reasons the attachment was properly dismissed.
DECIDED SEPTEMBER 5, 1962 — REHEARING DENIED SEPTEMBER 21, 1962.
Plaintiff's petition, verified upon an affidavit administered by the clerk of the superior court, prayed for an attachment against described property belonging to the defendant. The court issued the writ of attachment against the property; the sheriff levied the attachment on the property; and under an application made to the ordinary of the county after notice was served on the defendant and advertisement, the property was sold by the sheriff. The court entered judgment for the plaintiff on the attachment. Up to this time the defendant had made no appearance. The defendant thereafter filed a motion in arrest of judgment and to dismiss the attachment on the grounds that no declaration was filed on the attachment returnable to the next term of court and that in the absence of a declaration the prior judgment was void. After the hearing, the court entered judgment granting defendant's motion, arresting the judgment and dismissing the attachment. To this judgment the plaintiff excepted.
When an attachment is returnable to the superior or county court, the plaintiff shall file his declaration at the first term. Code § 8-601. It is undisputed that no declaration was filed in this case after the attachment. However, the plaintiff contends that his petition for attachment was equivalent to a declaration, and even though it was defective, the defect was amendable and the judgment cured the defect. Code § 110-702.
In Mehring v. Charles, 58 Ga. 377, the Supreme Court held that the seizure of the defendant's property by process of attachment will give the court jurisdiction to enable the plaintiff to file his declaration against the defendant provided the plaintiff alleges in the declaration that the defendant's property has been attached and ". . . instead of praying process against the defendant, pray that the court will render a judgment that the property levied on may be sold in satisfaction of his demand." Ibid., p. 379. It appears that at least some reference to the previous attachment is requisite for a good or an amendable declaration. West v. Gainesville Nat. Bank, 32 Ga. App. 703, 707 ( 124 S.E. 733). See also Kolb v. Cheney, 63 Ga. 688, 691; and Wilson v. Stricker Co. 66 Ga. 575 (2, 4) 578.
Viewed in the light of the above authorities, the petition in the present action is not sufficient to constitute a declaration in attachment as required by Code § 8-601. The defects inherent in the petition were not curable by the judgment. Anything to the contrary in Smith v. Jacksonville Oil Mill Co., 21 Ga. App. 679 ( 94 S.E. 900), must yield to the Supreme Court cases of Kolb and Wilson, supra.
Furthermore, the record reveals that there was no return of the writ of attachment. The return by the officer of the attachment writ is the foundation of the court's jurisdiction in all subsequent proceedings against the property attached. McReynolds v. Colclough, 146 Ga. 696 (3) ( 92 S.E. 206); Chastain v. Alford, 193 Ga. 551, 552 ( 19 S.E.2d 721).
The affidavit to the writ for the attachment was made before the clerk of the superior court and not before a judicial officer as required by Code § 8-109. If the attachment had been otherwise valid, for this reason it was absolutely void. Heard v. National Bank of Illinois, 114 Ga. 291 (2) ( 40 S.E. 266). Also see Worley Bros. Granite Co. v. Haskins, 105 Ga. App. 444, 448 ( 124 S.E.2d 663).
The trial court properly arrested the judgment and dismissed the attachment.
Judgment affirmed. Felton, C. J., and Hall, J., concur.