Smith v. Rodgers

Court of Appeals of Georgia

Smith v. Rodgers

194 S.E. 884, 57 Ga. App. 237, 1938 Ga. App. LEXIS 543

CourtCourt of Appeals of Georgia

DecidedJanuary 14, 1938

Docket26596

StatusPublished

Cited by1 cases

This text of 194 S.E. 884 (Smith v. Rodgers) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Rodgers, 194 S.E. 884, 57 Ga. App. 237, 1938 Ga. App. LEXIS 543 (Ga. Ct. App. 1938).

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Opinion

Sutton, J.

While no declaration need be filed in a justice’s court in aid of an attachment, the failure of the plaintiff to file at the first term a declaration in aid of an attachment returnable to the superior court is such a serious defect as to make it impossible for a valid judgment to be rendered in the case. The requirement of the statute (Code, § 8-601) is mandatory. Callaway v. Maxwell, 123 Ga. 208 (51 S. E. 320); Nixon v. Russell Piano Co., 51 Ga. App. 399 (180 S. E. 743); Nelts v. Reed, 54 Ga. App. 408 (188 S. E. 71). Accordingly, where the plaintiff in the present ease sued out, in a justice’s court, an attachment which was made returnable to the superior court and directed “to all and singular the sheriffs and constables” of the State, a levy on real estate being made by the sheriff of the county, and the plaintiff proceeding to trial without filing a declaration at the first term, the court did not err in dismissing the attachment proceeding on motion made on the trial of the ease.

Judgment affirmed.

Stephens, P. J., and Felton, J., concur.

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Sutton, J.

While no declaration need be filed in a justice’s court in aid of an attachment, the failure of the plaintiff to file at the first term a declaration in aid of an attachment returnable to the superior court is such a serious defect as to make it impossible for a valid judgment to be rendered in the case. The requirement of the statute (Code, § 8-601) is mandatory. Callaway v. Maxwell, 123 Ga. 208 (51 S. E. 320); Nixon v. Russell Piano Co., 51 Ga. App. 399 (180 S. E. 743); Nelts v. Reed, 54 Ga. App. 408 (188 S. E. 71). Accordingly, where the plaintiff in the present ease sued out, in a justice’s court, an attachment which was made returnable to the superior court and directed “to all and singular the sheriffs and constables” of the State, a levy on real estate being made by the sheriff of the county, and the plaintiff proceeding to trial without filing a declaration at the first term, the court did not err in dismissing the attachment proceeding on motion made on the trial of the ease.

Judgment affirmed.

Stephens, P. J., and Felton, J., concur.

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Bluebook (online)

194 S.E. 884, 57 Ga. App. 237, 1938 Ga. App. LEXIS 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-rodgers-gactapp-1938.

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