Smith v. Rodgers

While no declaration need be filed in a justice’s court in aid of an attachment, the failure of the plaintiff to file at the first term a declaration in aid of an attachment returnable to the superior court is such a serious defect as to make it impossible for a valid judgment to be rendered in the case. The requirement of the statute (Code, § 8-601) is mandatory. Callaway v. Maxwell, 123 Ga. 208 (51 S. E. 320); Nixon v. Russell Piano Co., 51 Ga. App. 399 (180 S. E. 743); Nelts v. Reed, 54 Ga. App. 408 (188 S. E. 71). Accordingly, where the plaintiff in the present ease sued out, in a justice’s court, an attachment which was made returnable to the superior court and directed “to all and singular the sheriffs and constables” of the State, a levy on real estate being made by the sheriff of the county, and the plaintiff proceeding to trial without filing a declaration at the first term, the court did not err in dismissing the attachment proceeding on motion made on the trial of the ease.

Judgment affirmed.