Atlantic & Gulf Railroad v. Florida Construction Co.

51 Ga. 241

• Court: Supreme Court of Georgia
• Decided: January 15, 1874
• Status: Published

Opinion

McCay, Judge.

1. It was not error to refuse to continue the issue until it was finally determined whether the Atlantic and Gulf Railroad was entitled to a general judgment. Such a judgment, if obtained, would not defeat the priority of the Construction Company so far as relates to the property attached. Both these creditors are attaching creditors of the defendant, and the lien of each upon the property attached is, as provided by section 3255 Irwin’s Code, to be determined by the date of the levy. True, it is provided that an attaching creditor may, by serving notice, or by replevy, or by the defendant coming in and defending on the merits, have a general judgment, and this is to have the “same force and effect” as if there were personal service. But this language is to be taken in connection with the provisions of section 3255 Irwin’s Code, “that the lien of an attachment is created by the levy and not the judgment on the attachment, and in case of a conflict between attachments, the one first levied shall be first satisfied; but in a contest between attachments and ordinary judgments or suits, it is the judgment and not the levy which fixes the lien.”

A judgment obtained by giving the ten days’ notice, as provided by section 3233 Irwin’s Code, is in no fair sense an 'ordinary judgment. It is commenced by attachment — the defendant may be notified only ten days before final judgment, and the ji. fa. must be first levied on the property attached. It would be, we think, bad public policy to permit one attaching creditor thus, by connivance with the defendant, to divest the lien of the first levy, and we do not feel disposed to give the language of the law that construction, as we cannot suppose the general assembly to have so meant, without clear language to that effect. As to the property of the defendant other than the attached property, the lien of the judgment dates from the judgment; but as to the attached property, the rights of the attaching creditors — including the creditor who has got his attachment enlarged — are fixed by the levy.

2. Upon the other point we are not prepared to say the judge was not right. The evidence is at best only suggestive that if the parties had time they might prove payment, but is very inconclusive. The agent may have never got the money; he. may have only made the arrangement, or if he got the money lie may, as would be his duty, have fulfilled his trust by delivering it to his principal. Besides, the Atlantic and Gulf Railrooad was bound to know that this issue would come up. This was the judgment term, the money was in the hands of the officers of court, and a motion for its distribution was to be expected. The information Keefe had should have been followed up so as that it could have been at least stated what the truth was. As it is, the matter is pure conjecture.

Judgment affirmed.