Kino v. Randall

95 Ga. 449

Opinion

Lumpkin, Justice.

An attachment was sued out under section 3293 of the code, and made returnable to a justice’s court. At the trial the defendant appeared and moved to dismiss the attachment on various grounds, the merits of which it is not now material to consider. This motion was overruled; and after the plaintiff had closed his evidence,, the defendant then made a motion for a nonsuit, which was likewise overruled, and the trial resulted in a verdict for the plaintiff-, upon which a general judgment in his favor was entered. The defendant thereupon sued out a certiorari, in which she assigned as error the refusal of the magistrate to dismiss the attachment and the refusal to grant a nonsuit, and also alleged that the verdict was contrary to law and the evidence. Upon the hearing of the certiorari, the judge of the superior court passed an order sustaining the same, and directing that the case be dismissed in the magistrate’s court.

1. From an inspection of the entire record, it is evident that the judge was of the opinion' that the motion to-dismiss the attachment ought to have been sustained; and that this being done, the case would necessarily be at an end. This view of the matter was erroneous. This court has frequently decided that notwithstanding* the dismissal of an attachment, the plaintiff may nevertheless proceed with his case and obtain a genei’al judgment against the defendant, if the latter has appeared and made defense. Section 3809 of the code expressly declares that where the notice required by it has been given, “no declaration shall be dismissed because the attachment may have been dismissed”; and while section 3328 does not so provide in terms, the same rule has-been followed in cases arising under it. See Joseph v. Stein, 52 Ga. 332; Camp v. Cahn, 53 Ga. 558; Sutton et al. v. Gunn, 86 Ga. 652; Cade v. Jenkins, 88 Ga. 797. The case of Hodnett v. Stone, 93 Ga. 645, is also, in principle, very much in point.

~We are of the opinion that presenting and insisting upon a motion for a nonsuit is making a defense to the action on its merits. It is difficult to conceive of its be ing anything else. In Hickson v. Brown, 92 Ga. 225, this court held that where a defendant in attachment traversed the truth of the affidavit upon which it was issued, and appeared at the trial to maintain this traverse, a general judgment could be rendered against him.

Therefore, whether the magistrate erred in refusing to dismiss the attachment or not, the plaintiff was entitled to proceed with his case for the purpose of obtaining a general judgment; and unless this judgment was wrong for some other reason, it should be allowed to stand. Nt any rate, it was error to order the case to be dismissed from the justice’s court.

2. If the verdict in that court was without evidence to sustain it, of course it ought not to be allowed to stand. As already intimated, however, it is apparent from the record that the judge of the superior court did not undertake to pass upon this question or upon the alleged error in refusing to grant a nonsuit. We therefore leave these matters open for further consideration when the case comes up before him for another hearing.

Judgment reversed.