James Selman & Co. v. Shackelford

17 Ga. 615

• Court: Supreme Court of Georgia
• Decided: April 15, 1855
• Docket: No. 105
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] In cases of claim under the Attachment Law, to whom should the bond be made payable, the levying officer or the creditor ?

By the Act of 1814, (Cobb’s Digest, 72,) the bond is required to be given to the “ Sheriff or Constable serving the attachment.” And this is the Statute relied on in the argument in behalf of the defendant in error, and which was read, no doubt, in the Court below. Under this Act, it was by no means clear to whom the bond should be made payable. But in 1841, the Legislature enacted, “ that in all cases, whether the levy be made under attachment or execution, the bond should be made payable to. the plaintiff in attachment or execution.” (Cobb’s Digest, 536.)

The bond, therefore, was taken in pursuance of the law.

[2.] Was the affidavit sufficient ? Shackelford deposed that one half of the property levied on belonged to him individually, and was not the property of the defendant. The law requires, that the claimant shall make oath that the property levied on is his. (Cobb's Dig. 647.)

We see no defect in the affidavit.

[3.] Again, it was objected, that in the affidavit it was alleged that the property levied on did not belong to Posey Hudgins, when the name of the debtor and defendant was Humphrey P. Hudgins.

The Magistrate states, in his return, that' Hudgins was as well known by the one name as the other. And that was a satisfactory reply to the supposed misnomer.

[4.] But there is another answer. By reference to the claimant’s oath, to which we have just alluded for another purpose, it will be perceived that it is only necessary for the claimant to assert property in himself; and it is not required that he should go further and negative the right of the defendant. And consequently, a mistake as to the Christian name of the defendant, would not vitiate the proceeding.

We affirm the judgment of the primary Court upon all the grounds taken in the certiorari.

[5.] That the parties to a certiorari are entitled to be heard in the Superior Court, personally or by Attorney, as in all other cases, provided they claim the privilege, is a proposition ■ too plain to need argument.