Gazan v. Royce & Co.

Hall, Justice. This writ of error covers two classes of cases. The first class is represented by the case of Gazan vs. Royce & Co.; the second class by Gazan vs. Loomis & Hart. The attachment in favor of Royce & Co. was issued under section 3297 of the code. As appears upon the face of the record from the lower court, the petition in this case was not supported by any affidavit, nor was it supported by testimony of like character as that of an affidavit; Under the principles announced in the case of Loeb vs. Smith Bros. & Co. et al. at this term, the attachment was fatally defective. The petition says that the petitioner could not swear that the facts set forth in the affidavit in relation to the fraudulent transfer of this property were absolutely true, but asked permission to submit such evidence as was under his control. True, at a subsequent stage of the proceedings, the judge said that he had evidence before him (as we take it, oral evidence) which justified his issuing this attachment. If such evidence existed, it depended solely on the judge’s recollection. No record was ever made of the fact that it existed. And we have just held (Loeb vs. Smith Bros. & Co. et al.) that that, or something equivalent to it, is indispensable to authorize the issuing of such an attachment. Ante, 504. If there were nothing more in this case than that, it would be decisive of the question arising upon that attachment, and all others of the same class included in this record. But in 1884, the claimant made a motion in writing to set aside this attachment, and all others belonging to the same class, for the reasons just mentioned. Upon the hearing of that motion (which was placed upon the motion docket), it was overruled by the court, and no exception was taken to the decision overruling it. It was stated that exceptions pendente lite were filed to the mo [523] tion, but they did not appear-upon the record. If they were filed to that decision, they were, never placed upon the minutes of the court where-they should have gone. The case was afterwards brought to this court by the plaintiffs in attachment, who were cast on -the first trial; and here the decision was reversed. These exceptions-were not brought up, nor was error assigned- upon them in this court, and nothing more was heard of them until this-claim was on its final trial in 1886; and then an order was taken to enter the decision made in 1884. upon the minutes of the court nune pro tuna. That order was granted. On the trial of the main issue,;the claimant moved to exclude the attachment as evidence, upon the ground formerly stated, and to dismiss the lien created by the- attachment. This motion was overruled, and the claimant excepted. It was overruled on two grounds, the latter- of which need only be mentioned (the former-having been-already disposed of), viz. that there was a former judgment unappealed from and unreversed, which was. conclusive as to the matter. We do not think the ruling proper. We are aware that in the case of Hines & Hobbs vs. Kimball et al., 47 Ga. 5S7, the court below did entertain a motion to dismiss- attachments prior to the trial of the main issue -in the case, for defects apparent on the face of the attachment, and that the court did order the attachments to be dismissed. That was excepted to, and brought - to this, court. This court, however, reversed that judgment. In delivering the opinion of the court, Judge McCay stated that it was admissible to make the motion in that way ; but later on, similar questions arose in several cases before this court, and in all except one, upon claims filed to the levying of executions, a different rule was laid down. In Bosworth vs. Clark, 62 Ga. 286, this court ruled that if the claimant would except to the sufficiency of the execution, the proper motion on his part was to dismiss the levy, or to object to the execution as illegal evidence [524] in the case, and not a motion to quash the execution; that his only concern therewith was that the execution should not be used against the property claimed. This ruling was repeated, almost in terms, in the case of Morton, Bliss & Co. vs. Gahona, 70 Ga. 569, where Chief Justice Jackson said, in delivering the opinion of the court, that it did not lie in the mouth of the claimant to move to quash the execution. It only concerned him that the execution should not touch his property, as previously decided in Bosworth vs. Clark. In Krutina vs. Culpepper, October term, 1885 (75 Ga. 602), we held that where an attachment issued, based upon affidavit not positively swearing to the ground upon which it is issued, and was levied, a judgment in attachment obtained, a Ji.fa. issued and levied, and a claim interposed, the claimant could move to dismiss the levy on the ground that the attachment affidavit was defective; that such a motion was not objectionable on the ground that it was not made within three years from the rendition of the judgment; that the claimant could not move in reference to the judgment until after the filing of the claim ; and that a motion by a claimant to dismiss a levy is not a motion to set aside a judgment, which must be made within three years from the rendition of such judgment. For these reasons we think that this attachment should have been repelled when it was offered in evidence to subject the property claimed, and that the levy should have been dismissed; and as to the class of cases of which this is a representative, the judgment of the court below must be reversed. In the other class of cases, represented by Gazan vs. Loomis & Hart, the attachment issued under section 3264 of the code. The objection to that was twofold: (1) That it was issued in the partnership name, and that the names of the individuals composing the firm were not set out in the attachment; and (2) that the ground of the attachment was not positively sworn to. The affidavit was made by an attorney at law, who stated that, to [525] the best of his knowledge and belief, the party was indebted in a certain amount to the firm of which he was the attorney; and he further swears to the ground of the attachment, setting it forth in the terms of the statute. These are no longer open questions in this court. The first was disposed of in the case of DeLeon vs. Heller, Hirsch & Co., October term, 1886, (77 Ga. 740). As to the objection on the second ground mentioned, that is covered by the case of The Chronicle and Constitutionalist vs. Rowland, 72 Ga. 195. The property claimed was found subject, as it should have been. The evidence upon which it was condemned was strong enough to justify the verdict of the jury; indeed, the weight of the testimony was with the finding of the jury. Various exceptions were taken to the admission of testimony and the charge of the court, none of which we think are good. Judgment therefore in this latter case, Gazan vs. Loomis & Hart, together with the other cases belonging to that class, is affirmed.