Friedman v. First National Bank , 31 Ga. App. 742 ( 1924 )

Bboyles, O. J.

1. The petition, upon which the attachment issued, set forth a cause of action, and the court did not err in 'refusing to dismiss the petition and the attachment upon the oral motion of counsel for the defendant.

(а) The allegations of paragraphs 4, 5, 6, 9, and 10 of the petition were relevant and material, and the court did not err in overruling the motion of defendant’s counsel to strike them, upon the grounds that they were irrelevant and immaterial and set forth no legal grounds upon which the attachment could issue. Nor were the allegations contained in paragraphs 7 and 8 of the petition so indefinite and defective as to render , them subject to the motion to strike.

(б) Where an affidavit to obtain an attachment is made by the agent of the party seeking it, the agent may swear that the amount claimed to be due is true to the best of his knowledge and belief. Civil Code (1910), § 5056. See also Levy v Millman, 7 Ga. 167 (1). The instant case differs from that of Brown v. Massman, 71 Ga. 859 (2) (cited and relied upon by counsel for the plaintiff in error), in that the affidavit in that case, which was held to be defective, qualified the grounds of the attachment, whereas in the instant case the agent in his affidavit swore positively as to the grounds of the attachment, and qualified only tlie statement as to tlie cmnouni of the indebtedness. Chronicle and Constitutionalist v. Rowland, 72 Ga. 195. There is, therefore, no merit in the contention of counsel for tlie plaintiff in error that the attachment should have been removed because the grounds of the attachment were not positively sworn to in the affidavit of the plaintiff’s agent.

Decided March 6, 1924.

2. On an application to remove an attachment granted ex parte under the provisions of section 5088 of the Civil Code of 1910, the judge, in passing upon the facts adduced upon the hearing, is vested with a wide discretion, similar to that which he has in cases of injunctions, and such discretion will not be controlled unless it plainly appears to have been abused. Falvey v. Adamson, 73 Ga. 493 (3).

3. Under the above rulings and the particular facts of this case, this court cannot say, as a matter of law, that the judge abused his discretion in refusing to remove the attachment and ordering it to continue.

Judgment affirmed.

Luke and Bloodworth, JJ., concur. B. B. Lambert, for plaintiff in error. Williford & Dulce, contra.