Silverman & Son v. Sloat & Brother

Pottle, J. Plaintiffs in error sued out in a justice’s court an attachment against defendants in error, and in the affidavit alleged that the defendants were indebted to the plaintiffs “in the sum of $75,” and that the defendants resided without the State. Upon this affidavit an attachment was duly issued, returnable to the justice’s court, and the case was thereafter appealed to the superior court. When the ease came on to be tried on the appeal] a motion to dismiss the attachment was made, upon the ground that no cause of action was set .forth, and because no itemized statement of the indebtedness was attached thereto. In response to this motion the plaintiffs in the attachment offered to amend by setting forth a bill of particulars or statement of indebtedness. The judge refused to allow this amendment, and sustained the motion to dismiss. In this we think the trial judge was in error. In all eases of money demands, in suing out an attachment, all that the code requires is that an affidavit be made that the debtor has placed himself in some one of the positions enumerated in the code as authorizing an attachment to issue, and that it should also set out “the amount of the debt claimed to be due.’’ Civil Code (1910), § 5056. By the Civil Code (1910), § 5110, the plaintiff in attachment is given the right to “amend his attachment, or bond, or .declaration, as in other cases at common law.” Without reference to whether the amendment offered in the present case was necessary, it is very clear that the plaintiff had a right to amend. The attachment was not void, and was amendable so as to specify the nature and character of the indebtedness which the plaintiff claimed against defendants in attachment. Indeed, this court held in Penn v. McGhee, 6 Ga. App. 631 (65 S. E. 686), that “the 194 affidavit upon which an attachment is based is amendable, not only as to form, but also as to substance.” There was enough in the attachment proceedings to amend by, and the .amendment offered was simply an amplification of the cause of action originally set forth. . Judgment reversed.