Brown & Sanford v. McCluskey

26 Ga. 577

• Court: Supreme Court of Georgia
• Decided: November 15, 1858
• Status: Published

Opinion

By the Court.

Lumpkin J.

delivering the opinion.

There are two questions in this case:

1st. Is the affidavit in attachment good as it stands ? The creditor swears that his debtor “ has absconded.” An oath in this form was held, by this Court, to be insufficent, in Levy vs. Millman and others, (7 Ga. Rep. 167.) The Attachment Act requires the plaintiff to swear that he “ absconds.” To say that the defendant “ has absconded,” may relate to the past; and at the time the deposition is made, he may have a notorious residence in the State. True, it is added, “so that the ordinary process of law cannot be served upon him.” But this is a deduction or conclusion, from the fact previously stated.

2d. Can the affidavit be amended ? It is difficult to conceive how an oath, which is a necessary preliminary step, can be changed so as to sustain any proceeding which is based upon it. It'is true, that the Attachment Law of 1855 • —56 provides that no attachment shall be void in consequence oí a failure to comply with the forms therein prescribed ; still, the right to amend would seem to be restricted to the “ attachment,” “ bond,” “ declaration” and “return” of the levying officer. The omission of the affidavit is significant, and must mean something.

Judgment affirmed.