Smith v. Jacksonville Oil Mill Co. , 21 Ga. App. 679 ( 1918 )

Luke, J.

Mrs. Martilla Smith sued out an attachment against the Jacksonville Oil Mill Company, on the ground that the defendant is a non-resident of this State. It is averred in the affidavit for attachment that the defendant is indebted to the plaintiff “in the sum of five hundred dollars, on a claim for damages for the homicide of her husband.” The attachment was sued out on October 10, 1910, and was returnable to the January, 1911, term of Bartow superior court. On October 13, 1910,- it was duly levied, returned, and docketed; and the clerk’s entry thereon was made to show the docket number of the case, along with the other matter mentioned in the first of the foregoing headnotes. On the next day the plaintiff filed a petition against the defendant, to recover $500 for the homicide of her husband, alleging therein that the defendant is a non-resident of this State. Her petition is entitled in the attachment cause by a statement of the ease at the beginning thereof, wherein the petition is designated by her as her “declaration in attachment.” It contains no other reference to the attachment, and concludes with the usual prayer for process and without any other prayer, and no process is annexed thereto. On the cover of this petition the clerk placed the same docket number as upon the attachment, labeled it “Declaration in attachment,” and placed it with the other papers in the attachment case. The defendant, appearing specially and under protest, moved to dismiss the “attachment proceedings,” because “no declaration in attachment was filed at the first term of the court after the levy of said attachment.” To meet this motion the plaintiff offered an amendment to her declaration, wherein she .fully and specifically set forth the levy of the attachment and added a prayer that the attached property be sold to satisfy such judgment as she might obtain. The plaintiff also offered to show by parol that the clerk’s acts respecting the declaration were in accordance with the direction of the plaintiff’s attorney. The court refused to hear the evidence, disallowed the proffered amendment, and sustained the motion to dismiss the entire proceeding. Each of these rulings is assigned as error.

The headnotes fully cover the case and need no elaboration.

Judgment reversed.

Wade, O. J., and Jenkins, J., concur.