Opinion
33383.
DECIDED FEBRUARY 16, 1951.
Attachment; from Richmond Superior Court — Judge G. C. Anderson. September 29, 1950.
Charles Donald Dimmock, for plaintiff.
Claud R. Caldwell, for defendant.
The court did not err, under the facts of the instant case, in dismissing the attachment on the ground that no declaration was filed at the first term.
DECIDED FEBRUARY 16, 1951.
The proceedings here involved an assignment of error on the judgment of the court for dismissing an attachment proceeding because no declaration in attachment was filed. To get a clearer picture of the situation in the court below it seems expedient to set forth the status of the proceedings as they are set forth in the bill of exceptions.
(1) F. X. Sheehan, whom we shall call the plaintiff, properly procured an attachment on April 25, 1950, returnable to the May term of the Superior Court of Richmond County, Georgia.
(2) The process of attachment was levied on April 27, 1950, by a proper levying officer upon an automobile found in the possession of S. Ruben, the defendant in attachment.
(3) The attachment proceedings were duly returned by the levying officer to the Clerk of the Superior Court of Richmond County, Georgia. It was marked "filed" on April 27, 1950, and was assigned docket number "5653."
(4) On April 25, 1950, F. X. Sheehan filed in the office of the Clerk of the Superior Court of Richmond County, a petition or common-law action against the said S. Ruben. To this petition process was duly attached by the Clerk of the Superior Court of Richmond County directing the defendant, Ruben, to answer the plaintiff's complaint within 30 days after service. This petition was assigned docket number "5604". This petition and process were duly served upon the defendant Ruben on April 27, 1950.
(5) The attachment proceedings and the common-law action were filed by the plaintiff against the defendant for the same amount in each proceeding.
(6) On June 13, 1950, the defendant Ruben properly filed his traverse to the grounds of the attachment. (A claim for the property levied upon in the attachment proceeding was duly filed by a third party.)
(7) On September 18, 1950, the plaintiff filed an amendment which he designated as "amendment to the petition of attachment". This amendment was allowed by order of the judge of the superior court subject to objections. The clerk of the superior court endorsed thereon the number "5604" and thereafter struck the same and endorsed the number "5653". (The amendment referred to added two paragraphs to what the plaintiff's attorney termed to "such petition". They were numbered 7 and 8, which follows numerically the paragraphs of the common-law petition of the plaintiff. Paragraph 7 alleged substantially that the plaintiff had on April 25, 1950, filed his "petition of attachment" for indebtedness on a past due note of the defendant in the amount of $2,553.49 plus attorney's fees and interest, which the defendant refused and failed to pay, and that on the same date, i.e., April 25, 1950, the plaintiff simultaneously filed an attachment on an automobile belonging to the defendant and that the said automobile was levied upon by the proper officer; that said automobile was subsequently, on April 27, 1950, released upon a bond in the amount of $4200 signed by Willingham Finance Company as claimant and Thomas Clary as security for the claimant. Paragraph 8 alleged substantially that the plaintiff acknowledged that the claimant was possessed of a good, sufficient and legal mortgage in the sum of $440 on the automobile levied upon as a balance which the defendant owed the claimant. It is further alleged in this paragraph that the plaintiff is willing to pay and offers to the claimant the amount of $440, but that the plaintiff would resist, contest and litigate any sum greater than that amount; and that any additional refinancing or additional sums of money loaned by the claimant on or after the date of the "petition of attachment" and the attachment affidavit which the plaintiff filed, is a fraud and made in contemplation by the claimant and the defendant of defrauding the plaintiff of his rightful attachment of the automobile of the defendant. This paragraph further alleged that the plaintiff as of July 20, 1950, "holds a lawful judgment based upon the legal suit in this case," that is, the common-law suit and not the attachment, in the amount of $2,925.47).
(8) On September 29, 1950, in response to an oral motion made by counsel for the defendant Ruben, the judge of the superior court entered an order dismissing the attachment. The court's order reads: "The attachment in the foregoing case is dismissed, as no declaration in attachment was filed at the first term." On this order of the court the plaintiff assigns error here.
The question here for this court to decide is: Did the common-law action filed by the plaintiff in the circumstances above set forth from the record, comply with the requirements of a declaration in attachment? The plaintiff in error says: "Yes." The defendant in error says, "No." Let us endeavor to determine what the law is.
The record does not reveal whether the attachment or the common-law action was filed first. The plaintiff contends that they were filed simultaneously. Attachment proceedings do not grow out of the common law. Such proceedings are statutory. When attachment proceedings are returned to the proper court, as here, the subsequent proceedings are the same as in common-law proceedings where there is personal service. Code § 8-601 provides: "When the attachment has been returned to the proper court, the subsequent proceedings shall be in all respects the same as in cases where there is personal service; and when the attachment is returnable to the superior or county court, the plaintiff shall file his declaration at the first term." The plaintiff contends that formerly attachments were strictly construed but that the courts in more recent cases have construed attachments liberally. Plaintiff cites also in support of this contention, the case of Kennon Klink v. Evans, Gardner Co., 36 Ga. 89. It is further contended by the plaintiff in error that since the petition in the common-law action and the writ of attachment were sued out simultaneously and the defendant was served with notice of both the common-law action and the seizure of his property on the same date, that such was sufficient to comply with the attachment proceedings as to filing a declaration. In this connection counsel cites Code § 8-104, which reads as follows:
"In all cases where the plaintiff has commenced suit for the 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." We find nothing in the Code section just immediately above quoted which would justify the plaintiff in not filing a declaration in attachment at the first term. It seems plain that, under the law, one may pursue a common-law action and a proceeding in attachment for the same debt, at the same time, against the same party. They seem to be considered by the law as separate and distinct remedies which a party may pursue concurrently and the satisfaction of one satisfies the other. The Supreme Court held in Dollar v. Fred W. Amend Co. 184 Ga. 432, 435 ( 191 S.E. 696) that they were separate and distinct remedies, and should bear different numbers, so it would appear that when the clerk changed the number in the instant case from 5604 to 5653, he was but complying with the law. Counsel for the plaintiff cites in support of his contention, Mosely v. King Hardware Co., 19 Ga. App. 550 ( 91 S.E. 943). The facts of that case distinguish it from the facts of the instant case, as counsel for the plaintiff seems to recognize in his brief. Our attention is called to Code § 3-605, which reads as follows:
"The rule requiring plaintiff to elect shall not apply to a prior attachment against property where the defendant shall be subsequently served personally, nor 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." The difficulty which the plaintiff encounters under the principles of law contained in this section is that on July 21, 1950, he took a judgment in personam in the common-law action and made no reference whatsoever in that judgment to the attachment proceedings pending at the time he took this judgment. At the time he took this judgment in personam the first term of the court to which the attachment was made returnable had passed. If such proceedings could connect up the common-law action in such a way as to make it suffice as a declaration required to be filed at the first term, such was not done.
Under the facts of this case the trial court did not err in dismissing the attachment on the ground that no declaration was filed on the attachment proceedings at the first term.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.