Duke v. Automobile Supply Co.

Court of Appeals of Georgia

Duke v. Automobile Supply Co.

94 S.E. 915, 21 Ga. App. 608, 1918 Ga. App. LEXIS 424

CourtCourt of Appeals of Georgia

DecidedJanuary 22, 1918

Docket8743

StatusPublished

Cited by5 cases

This text of 94 S.E. 915 (Duke v. Automobile Supply Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duke v. Automobile Supply Co., 94 S.E. 915, 21 Ga. App. 608, 1918 Ga. App. LEXIS 424 (Ga. Ct. App. 1918).

Pincite

Opinion

Jenkins, J.

1. In cases of attachment, the giving of a replevy bond, the filing of a general demurrer, and an answer, without protestation, each operates to convert the action from a suit in rem into an action in personam; and in such case, though the attachment itself may fail, the suit on the declaration is still maintainable. McAndrew v. Irish-American Bank, 117 Ga. 510 (43 S. E. 858); Cincinnati Railway Co. v. Pless, 3 Ga. App. 400 (60 S. E. 8); Philip Carey Co. v. Sheppard, 19 Ga. App. 368 (91 S. E. 444); Falligant v. Blitch, 19 Ga. App. 675 (91 S. E. 1057).

2. But where the allegations of a declaration in- attachment were to the effect that the plaintiff sold to the defendant a certain automobile for $600, for which sum, with interest, judgment was asked, and on the trial the plaintiff testified that he sold the automobile to the defendant under an agreement that he was to take up four notes for $100 each which the plaintiff had previously given to the defendant for the same automobile and which had been traded by the defendant to a bank, and that the defendant was also to deliver to the plaintiff two other notes for $100 each, given by him to the defendant for this automobile, all of which the defendant refused to do, there was a failure to prove his case as laid, and the court did not err in awarding a non-suit.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Jenkins, J.

1. In cases of attachment, the giving of a replevy bond, the filing of a general demurrer, and an answer, without protestation, each operates to convert the action from a suit in rem into an action in personam; and in such case, though the attachment itself may fail, the suit on the declaration is still maintainable. McAndrew v. Irish-American Bank, 117 Ga. 510 (43 S. E. 858); Cincinnati Railway Co. v. Pless, 3 Ga. App. 400 (60 S. E. 8); Philip Carey Co. v. Sheppard, 19 Ga. App. 368 (91 S. E. 444); Falligant v. Blitch, 19 Ga. App. 675 (91 S. E. 1057).

2. But where the allegations of a declaration in- attachment were to the effect that the plaintiff sold to the defendant a certain automobile for $600, for which sum, with interest, judgment was asked, and on the trial the plaintiff testified that he sold the automobile to the defendant under an agreement that he was to take up four notes for $100 each which the plaintiff had previously given to the defendant for the same automobile and which had been traded by the defendant to a bank, and that the defendant was also to deliver to the plaintiff two other notes for $100 each, given by him to the defendant for this automobile, all of which the defendant refused to do, there was a failure to prove his case as laid, and the court did not err in awarding a non-suit.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

94 S.E. 915, 21 Ga. App. 608, 1918 Ga. App. LEXIS 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duke-v-automobile-supply-co-gactapp-1918.

Opinion

Related

Cite This Page — Counsel Stack