Attachment. Claim. Practice in the Supreme Court. On September 12th, 1871, Higginbotham sued out an attachment against one George W. Lay as principal, and Charles Lay as security, for $900 00, besides interest, upon the ground that they resided out of the State. The attachment was levied upon certain land as the property of the defendants. Judgment was obtained, and the execution issuing therefrom was levied upon the same land as belonging to Charles Lay.
Cited by 1 later decisions — most recently November 1885
Good law ✅— No negative treatment on recordhow we know
¶11. In Dow, Wilson & Herreman vs. Smith & Company, 8 Georgia, 551, the contest was over the distribution of money in the hands of the sheriff. One party claimed as general judgment creditors — the other claimed under a judgment on attachment of older date. The former tendered an issue traversing the truth of the ground of the attachment alleged in the affidavit on which it was sued out. The judgment of the Court below, refusing to permit the issue to be made, was affirmed. This Court said, “it is exceedingly questionable whether this could be done by the defendants themselves, especially after the appearance term of the attachment. We are quite confident that third persons had no such right after judgment had been rendered on the attachment.”
¶2*265That decision is applicable to this case. If judgment creditors have no such right, who may never have known of the attachment until after judgment upon it, there is more reason in not allowing it to a claimant of the property levied on by the attachment, and by the execution issued on the judgment rendered thereon, and who, in'all probability, had notice of the levy of the attachment.
¶3Since the decision in 8 Georgia, supra, was pronounced, the Legislature passed an Act limiting the right of a defendant in attachment to traverse the truth of the ground in the affidavit, to the first term: Acts of 1855, 1856; New Code, section 3312; 30 Georgia, 40; 37 Ibid., 18.
¶42. The charge of the Court, “ that the claimant cannot attack this attachment and judgment on the ground that G. W. Lay, one of the defendants, resided in said county of Gordon at the time the attachment was issued; this matter cannot be inquired into by this Court, and the jury cannot consider it,” we think was only an enunciation of the foregoing principle, and that it was so intended by the Court. Counsel for plaintiff in error argued that it excluded the jury from considering that fact, as part of the claimant’s evidence, in setting up the question of fraud between the plaintiff and G. ~W. Lay. It does not appear from the portions of the charge given in the bill of exceptions that the matter of fraud was considered by the Court, or that • there was any request to charge upon that subject. Nor does the bill of exceptions show that the issue of fraud was raised. The charge excepted to was a correct and proper legal principle. It was a negation on the right of claimant to traverse the attachment affidavit. It was appropriate to the issue made. If there was the further issue of fraud, the presumption is that the Court charged upon it, and that the charge was right. The bill of exceptions should distinctly show the error complained of, and that the issue on which the error was committed was made in the case. Justice to the Judge and to the other party require this.
