Gilham Electric Co. v. Daniel

Jenkins, P. J.

Under the law governing garnishments in this State, such a proceeding can be instituted where a suit is pending or judgment has been obtained (Civil Code (1910), § 5265), where ordinary attachments are pending (Civil Code, § 5094), and where purchase-money attachments are issued (Civil Code, § 5086); but under the provisions of the last-named section, and under the rulings of the Supreme Court and of this court, an attachment for purchase-money under the Civil Code, § 5086, can not be levied by garnishment except for the proceeds of all or some portion of the property described in the affidavit. Reid v. Tucker, 56 Ga. 278; Ivey v. Kerce, 42 Ga. App. 336 (156 S. E. 239). The question here is, where a purchase-money attachment has been levied, not by garnishment but on the particular property, can a general garnishment issue under § 5265, as under a suit pending. The scope of a garnishment in aid of a suit, supported by and founded thereon, should not extend beyond the scope and limits of the suit itself. After the levy of a purchase-money attachment, unless and until a declaration is filed asking for a general judgment, thus converting the proceeding into a common-law action, it is in the nature of a proceeding in rem, since nothing can be recovered except the proceeds of the property itself. The plaintiff in attachment may or may not choose to thus convert the proceeding into a common-law action by giving the notice prescribed by the Civil Code (1910), § 5103, and asking by his declaration for a general judgment. Until and unless lie does, his relief is confined to the narrow limits afforded by the property itself. It is true that when the plaintiff in attachment subsequently files his declaration asking a judgment, general in its nature if the notice by the plaintiff or bond by the defendant has been given, or special if not given, the suit is deemed to have commenced as of the date of the levy,, and any special lien set up by the judgment relates back to the date of the levy. Baker v. Aultman, 107 Ga. 339 (33 S. E. 423, 73 Am. St. R. 132); Watters v. O’Neill, 151 Ga. 680 (108 S. E. 35). In such a sense a suit is pending from the time the levy is made, but, as already pointed out, the action is strictly limited in scope, seeking merely to condemn the particular property, unless and until the plaintiff shall subsequently elect, after notice given, to enlarge the scope of the proceeding by converting it into a common-law action. In the instant case, at the time the garnishment was issued and served, the pending purchase-money attachment suit, proceeding in rem, was not broad enough to sustain and support an ordinary garnishment seeking to subject funds in no wise connected with the particular property which the pending suit was then seeking to condemn. The ruling here announced does not conflict in' principle with the recent ruling by this court in Walton v. Hines, 40 Ga. App. 757 (151 S. E. 558). There it was held that the giving of the notice for attorney’s fees, after the levy of such an attachment, but ten days prior to the filing of the declaration, did not authorize a judgment for attorney’s fees against the sureties on the replevy bond, for the reason that the suit must be taken to have commenced upon the levy of the attachment. In the opinion it was said: '“The fact, however, that after the giving of the replevy bond the attachment has no longer a function to perform does not mean that it never "had one, or that the function already performed was not necessary to the action and did not constitute the commencement thereof. The effort to bind the sureties on the bond for attorney’s fees is necessarily based upon the validity of the attachment proceeding, and it can not, therefore, be said that the proceeding did not commence with the levy of the attachment. It follows, therefore, that if the attachment proceeding is the means by which the parties are brought before the court, and the liability of a surety on the replevy bond is dependent upon the validity of that proceeding, it can not be said that the declaration in attachment ' was an entirely new suit, in no wise dependent upon the prior proceeding in attachment, but the action must be held to have commenced with the levy of the attachment, made prior to the giving of the notice for attorney’s fees.” It is true that the language of the headnote in that case is broader than- the facts of the case demanded, and is not limited to a proceeding for attorney’s fees against the sureties on a replevy bond given under a valid attachment proceeding. But even as against the defendant himself, it would seem that the rule would be the same and that the levy of even a void attachment is the commencement of the subsequent suit in personam, when, in response to the plaintiff’s notice given thereunder, the defendant comes in and makes a general appearance. See McAndrew v. Irish-American Bank, 117 Ga. 510 (43 S. E. 858); Williams v. Flanders, 35 Ga. App. 644 (134 S. E. 183). The principle governing the rule as to attorney’s fees, as set forth in the Walton ease, does not seem pertinent to the question here involved. At last, about the only thing held in the Walton case was the familiar rule that the levy of the attachment constituted the beginning of the suit, and that consequently the subsequent notice for attorney’s fees would not avail. It would not do to hold that after a suit has been commenced the liability thereon could be increased to the extent of attorney’s fees by giving a subsequent notice. This would be contrary to the terms of the statute governing the recovery of attorney’s fees. The instant case presents a different situation. The levy of the attachment here, as there, constituted the commencement of the suit, but pending the time that the suit thus commenced, was enlarged in scope by being converted into an action in personam, it amounted to nothing more than an action in rem, and could not afford the basis or foundation, as a suit pending, for a general garnishment seeking a recovery of funds in no way connected with the particular property described in the attachment affidavit. The scope of the “suit pending” must embrace and include all that the garnishment founded thereon seeks to recover.

The court did not err in dismissing the garnishment proceeding.

Judgment affirmed.

Bell, J., concurs. Stephens, J., dissents.