Walden v. Barwick

1. A motion to dismiss the writ of error because there was no motion for new trial is without merit where the bill of exceptions assigns error upon the verdict and judgment, not because of any error inherent in them, but because the court erroneously allowed the verdict to be rendered and the judgment to be entered. Code, § 6-804; Lyndon v. Georgia Ry. Elec. Co., 129 Ga. 353 (58 S.E. 1047); McGee v. Knox, 60 Ga. App. 72 (2 S.E.2d 808); Henderson v. Amer. Tel. c. Co., 71 Ga. App. 607 (31 S.E.2d 662).

2. It is essential to the validity of an attachment that the entry of levy should show that the property was levied on as that of the defendant in attachment. Whether the property be realty or personalty; and in the absence of such a return, the court has no jurisdiction to deal with the property. Tuells v. Torras, 113 Ga. 691 (4) (39 S.E. 455); Nix v. Citizens Bank of Moultrie, 34 Ga. App. 546 (130 S.E. 597).

3. The recital of fact in the certified bill of exceptions that no evidence whatever was introduced before the court and jury at the time of the taking of a verdict and judgment in rem in favor of the plaintiff in attachment, must be taken as true, when not contradicted by any portion of the record. Hughes v. Cureton, 147 Ga. 232 (93 S.E. 204); Crawford v. Cook, 48 Ga. App. 456 (173 S.E. 187).

4. In an attachment case the plaintiff is required to prove his demand before taking a judgment against the attached property, although the declaration in attachment sets forth the demand in orderly and distinct paragraphs, consecutively numbered. Fincher v. Stanley Elec. Mfg. Co., 127 Ga. 362 (56 S.E. 440).

5. Under these rulings the court erred in permitting the plaintiff to take a verdict and a judgment.

6. The remaining assignment of error either are without merit or they relate to matters not likely to arise again.

Judgment reversed. Sutton, P. J., concurs. Felton, J., concurs in the judgment.

DECIDED JUNE 1, 1945.