Wright, Williams & Wadley v. Brown

66 S.E. 1034, 7 Ga. App. 389, 1910 Ga. App. LEXIS 309

• Court: Court of Appeals of Georgia
• Decided: February 10, 1910
• Docket: 2108
• Status: Published

Opinion

FTtt.t., C. J.

1. Where an attachment has been levied upon personal property and a claim is interposed, the regularity of the attachment is ordinarily of no concern to the claimant, he being interested only in showing that the property is not subject. Therefore, the claimant can not move to dismiss or quash the attachment because of any apparent defect, his remedy being to have the levy dismissed. Rossiter v. Carrollton Electric Light Co., 5 Qa. App. 393 (63 S. E. 233), and cases cited. But where no declaration in attachment has been filed as required by the statute, no suit is pending in which a valid judgment can be rendered for the plaintiff, and for this reason the attachment loses its lien and can not claim money held by the sheriff for distribution under a money rule. Civil Code, §4556; Russell v. Faulkner, 89 Ga. 818 (15 S. E. 756) ; Banks v. Hunt, 70 Ga. 743; Callaway v. Maxwell, 123 Ga. 208 (51 S. E. 320).

2. Money rules are in the nature of equitable proceedings; and where a fund is in the hands -of the sheriff, arising from the sale of a debtor’s property for distribution by the court among his creditors, and there is no lien on the fund or the property from the sale of which the fund was realized, it should be awarded to either the defendant or his creditors who are equitably entitled to receive it.

3. Where the sheriff has levied an attachment upon personal property of a perishable nature, and has sold it under what is commonly known as a “short order,” and the attachment proceeding subsequently becomes void and loses its lien, because of the failure of the plaintiff in attachment to file his declaration at the first term, the money remaining in the hands of the sheriff primarily belongs to the defendant in attachment; but if the title to the property sold as the property of the defendant in attachment be in a third person by reason of his having reserved it in writing as security for the purchase-money, that third person may waive his right to follow the property and recover it from the purchaser at the sale, and in that event can, on money rule, have the proceeds of the sale applied upon his debt; and this is true notwithstanding he gave public notice on the day of the sale that whoever bought would buy subject to his title. ' -Judgment reversed.

Blalock & Culpepper, Daley, Chambers <& Smith, for plaintiffs-in error. J. W. Wise, W. N. D. Dixon, contra.