Murphy v. Crew

38 Ga. 139

• Court: Supreme Court of Georgia
• Decided: December 15, 1868
• Status: Published

Opinion

Brown, C. J.

The single question presented by this record is, whether E. M. Bruce & Co., who lost the priority which they had obtained over Murphy by the first service, of their attachment, by serving Josiah Sibly & Sons with summons of garnishment, regained that priority, by obtaining the consent of the defendant in attachment, and the leave of the Court, to reinstate their case on the docket? We think not.

While we do not question the right of the Court to grant the order to reinstate the case, both plaintiffs and defendants consenting, we hold that this could only be done subject to the rights which third persons had acquired in the meantime. When E. M. Bruce & Co. dismissed their attachment, Murphy’s right to priority attached immediately, and that right could not be divested by reinstating their case at the next term of the Court. As to the general doctrine on this subject, see Revised Code, 34-45; 5 Ga., 527; 18 Ga., 287.

Judgment reversed.