Bruce v. Conyers

Bleckley, Judge. 1. .The motion to dismiss the attachment was not too late: 48 Georgia, 12. The defendant having filed no plea, the case was not at issue upon the merits; consequently, the 15th rule of court, and the case in 44 Georgia, 454, were no obstacles to the motion. I should hesitate to pronounce them obstacles at any stage of the proceedings, even after issue joined on the merits of the action, where, as here, the defect in the affidavit is patent, and one that renders the attachment absolutely void. [680] The attachment, whether good or bad, brings the defendant into court, if he is served with notice, or if he appears and defends, or if he replevies the property, and he remains in court, though the attachment be dismissed: Code, sections 3309, 3313, 3328; 46 Georgia, 225; 53 Ibid.., 558. Motion to dismiss the attachment is, therefore, not a denial that .the process is sufficient to bring him into court, but a denial of its sufficiency to seize and hold his property. Such a motion goes to the writ, while a plea to the merits goes to the action. The two things, under our present statutes, are perfectly consistent. Perhaps they were not so until statutory provision was made for proceeding with the action notwithstanding a dismissal of the attachment. The obstacle insisted upon here v'as that the property had been' replevied. But surely that ■ ought not to cut off a motion to dismiss the attachment. The defendant was obliged to replevy in order to regain the possession of his property without litigation: If the attachment, when read in connection with the affidavit, was void, could it uphold a levy, or a statutory bond executed in consequence of the levy ? We think not. Such an attachment is as subject-to be dismissed after, as before, a replevy bond has been given: 53 Georgia, 558. Ordinarily, a replevy bond will dissolve an attachment, but where there is no valid attachment, and the defect is not amendable, there is nothing to dissolve. A void thing cannot be made the less void by calling it dissolved. 2. It was made a' question in the ai’gument of the case whether this writ of error was not prematurely brought. We think it was not, for the reason that the whole attachment element was disposed of by dismissing the attachment. The decision was final as to it, and any judgment which the plaintiff might recover on his declaration thereafter would have no aid from the levy of the attachment. It would take lien only, from the date of the judgment, (51 Georgia, 241,) and, as we have seen, the security of the replevy bond would be lost. To maintain his attachment, it was the right of the [681] plaintiff to have the judgment dismissing it reviewed by a separate writ of error: 53 Georgia, 442. 3. Our ultimate ruling in affirming the judgment is suffi- ' ciently set out in the third head-note. Judgment affirmed.