Wicker v. Schofield & Son

61 Ga. 135

• Court: Supreme Court of Georgia
• Decided: August 15, 1878
• Status: Published

Opinion

Jackson, Justice.

This motion is to set aside judgment, verdict and execution on two grounds: first, because the declaration in attachment was insufficient; and secondly, because there was no prayer in the declaration for a levy upon any specified property or any property at all.

We think that the court did not err in overruling the motion because the defect, if any, in the declaration in attachment was amendable. The Code, section 3587, is explicit that such motion may be made “ for any defect not amend able,” which by necessary implication means that the motion cannot be made if the defect be amendable.

Reference is made to the declaration filed, and the defects complained of are amendable.

Especially ought this law to be enforced, when, as in this case, the defendant appeared, defended the attachment, and brought the case to this court, where the judgment below was affirmed. See 59 Ga., 210. The grounds do not extend to any defect in the execution.

Judgment affirmed.