Duke v. Automobile Supply Co.

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

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.