Dunlap Hardware Co. v. Jay

28 S.E. 974, 101 Ga. 645, 1897 Ga. LEXIS 290

• Court: Supreme Court of Georgia
• Decided: July 8, 1897
• Status: Published

Opinion

Simmons, C. J.

The two cases here decided are identical as to their facts, in so far as the same are material. Attachments were issued under section 4543 et seq. of the Civil Code, and were subsequently “removed” by the judge, as provided in section 4546. The plaintiffs in attachment excepted to the ruling of the court dissolving the attachments, and bring the cases here for review. The testimony is somewhat conflicting, but there is ample evidence to warrant the conclusion that the conveyance of the property was made in good faith and without any intention to delay or defraud creditors. This being so, and the trial judge having dismissed or “removed” the attachments, we are controlled by the decision of this court where it was held: In a case in which “the testimony leaves it doubtful, to say the least, whether the transaction in question was bona fide or fraudulent, the preponderance is rather in favor of its fairness. This is the conclusion at which the judge trying the issue, both as court and jury, arrived,” that “On an application to dismiss an attachment granted ex parte on the ground of a fraudulent transfer of property by the debtor, the decision of the judge on disputéd facts may be reviewed; but in making such judgment, he is allowed the exercise of a sound discretion similar to that which he has in cases of injunction; and such discretion will not'be controlled unless it plainly appears to have been abused.” Falvey v. Adamson, 73 Ga. 493.

Under the facts appearing in the records of these cases, the trial judge did not abuse his discretion in dissolving the attachments under which the goods of the defendants had been by his order previously seized.

Judgment affirmed.

All the Justices concurring.