Calinet v. Hare & Chase of Atlanta Inc.
Calinet v. Hare & Chase of Atlanta Inc.
Opinion of the Court
On September 16, 1926, Hare & Chase of Atlanta
“The writ of attachment is purely a creature of statute, and is confined to common-law actions.” Tenn. Fertilizer Co. v. Hand, 147 Ga. 589 (95 S. E. 81). A proceeding by attachment is a suit. Fincher v. Stanley Electric Mfg. Co., 127 Ga. 364 (56 S. E. 440). Since the levy of the attachment is the commencement of the suit, and constructive notice of it (Fincher case, supra), the writ bears some resemblance to the process attached to an ordinary suit. Viewing it in this light, it is strenuously contended that the case of Myers v. Griner, 120 Ga. 723 (48 S. E. 113), where the copy process was signed and the original process was not signed, and the defect in the original process was held amendable, is authority ’sustaining the right to amend the writ in this Case. It may also be stated here that it has also been held that where the original process is complete, and the copy process lacks the signature of the clerk, the defect in the copy process may be cured by amendment. See Harris v. Taylor, 148 Ga. 663 (98 S. E. 86). On the other hand, in the ease of Nicholas v. British America Assurance Co., 109 Ga. 621 (34 S. E. 1004), it was held that where no process is attached to the petition, the defect is not amendable. In reaching this conclusion, the court freely admitted that an irregular or defective process could be
It has been said that a writ of attachment issued at the beginning of a suit is a preliminary execution, depending for its ultimate efficacy upon the rendering of the judgment in favor of the plaintiff. See Goepper v. Phoenix Brewing Co., 115 Ky. 708 (74 S. W. 726). An attachment is a mesne process, and never becomes final until after judgment. It must be returned to a court, and procedure is provided for a hearing and disposition of the case in court. Waiters v. O’Neill, 151 Ga. 684 (108 S. E. 35). Certainly in Georgia, both in form and effect, a writ of attachment closely resembles an ordinary execution. Viewing it in this light, the words of Justice Lewis in discussing a mortgage foreclosure on realty in Rawles v. Jackson, 104 Ga. 593 (30 S. E. 820, 69 Am. St. R. 185), appear applicable. They are: “The
execution in this case, while made out-by a clerk, was not signéd at all; and if there is any omission which would render such a' process void, it seems to us that a failure of the proper official to sign the paper would have this effect.” We think the writ of attachment was void in the case at bar. We quote from Leffler v. Union Compress Co., 126 Ga. 666 (55 S. E. 927) : “An attachment can be .levied either by a seizure of visible property or by garnishment. In attachment cases, the summons of garnishment can only issue after the writ of attachment, and the executing officer derives his power of serving the summons from the attachment writ. Civil Code, §§ [5094, 5074], Service of the summons of garnishment serves the purpose of a levy of the attachment on the funds or property in the hands of the garnishee. Civil Code, § [5079]. If the attachment writ be void, then its levy would be of no legal effect, whether the levy be made in the one way or in the other. The judgment against the garnishee who fails to answer follows as a judicial sequence from the antecedent attach
In this ease the writ of attachment was void and not amendable, and the trial court erred in allowing the amendment and overruling the motion to dismiss. It follows that the judgment of the superior court, denying the certiorari and affirming the judgment of the lower court, was reversible error.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.