Kent & Co. v. Downing

44 Ga. 116

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

McCay, Judge.

1. If an attachment be in fact pending in the Courts of this State, and the defendant be declared a bankrupt, the attachment is, by the Act of Congress, dissolved: Act of 1867, section 14. But how is the State Court to know that the defendant is a bankrupt? Surely the judgment must be, in some authentic mode, made known to the Court. It may be denied. It would be a strange law if, ipso facto, by the fiat of bankruptcy, attachments in other Courts fell to nothing, so as to make the officers of said Courts trespassers. Order is one of the first requisites of legal proceedings, and we do not see how our Courts can take notice of judgments of other Courts by instruction. They must be brought to the notice of the Court, and this cannot be done without parties. We think, therefore, it was proper to make the assignee a party on his own motion, if for no other reason than to have it properly made known to the Court that the defendant was a bankrupt.

2. We think, too, the assignee had a right to move to dismiss the attachment. If its levy gave the defendant any rights under the attachment bond, that passed, under the

law, to the assignee, he has the right to use the means to make them effective, by dismissing the attachment.

3. We are clear, however, that the bond and attachment were amendable. The Code, section 3240, authorizes amendments of the bond and attachment. The amendment here was clearly only to correct a clerical error. It appears that in fact the attachment was returned to November Term, 1870. This was patent to the Court, and the amendment was only to make the statements in the attachment and bond conform to the facts.

Judgment reversed.