Enneking Bros. v. Clay

79 Ga. 598

• Court: Supreme Court of Georgia
• Decided: March 3, 1888
• Status: Published

Opinion

Bleckley, Chief Justice.

The petition for attachment was against a fraudulent debtor, under the code, §3297. It was verified by the plaintiffs’ attorney, whose affidavit stated that, “ the facts contained in the foregoing petition are true, so far as they depend upon his own information and belief, and so far as they depend on the information of others, he believes them to be true; and that this information was derived from a trial of said matter before the judge of the superior court of said county; and as to the indebtedness of Hick-son & Yigal to the petitioners, deponent believes them to be true to the best of his knowledge and belief.”

1. There was no regular order granting an attachment; and that being so, the affidavit to the petition as to the ground of the attachment should have been positive. Brown vs. Massman, 71 Ga. 859; and see Loeb vs. Smith Bros, & Co.; Gazan vs. Royce & Co., 78 Ga. 504, 512.

2. In the margin of the attachment was a mandate of the judge, the terms of which are recited in the second head-note. We cannot construe this into a judgment granting the attachment. It was not intended as such, but simply as a mandate suspending the operation'of the writ, and there is no law for such a mandate. We think, therefore, that the attachment can derive no aid from this marginal entry.

3. Moreover, it appears on the face of the record that no bond was in fact given until after the judge issued the attachment. For this cause, the attachment was invalid, as we have just ruled in Clay vs. Tapp, Leather & Co. et al. The motion of the claimant to dismiss the levy was prop.erly granted.

Judgment affirmed.