Latimer v. Sweat

Lumpkin, J.

(After stating the facts.) 1. Primarily, a proceeding by attachment subjects only the property on which a levy is made, and the judgment is one to be realized from such property. A general judgment against the defendant is not rendered. The plaintiff in attachment may proceed for the purpose of obtaining a general judgment, in the manner pointed out by the statute. To do this, however, he must comply with the terms of the statute. The Civil Code, §4557, declares: “The plaintiff, his agent, or attorney at law, may give notice in writing to the defendant of the pendency of such attachment and of the proceedings thereon, which shall be served . . by giving him a copy of said notice at least ten days before final judgment on said attachment, and returning said original notice with his service entered thereon to the court in which said attachment is pending,” etc. It will be observed thattyhe notice required is of the pendency of such attachment and of the proceedings thereon, and that the return is to be made “to the court in which said attachment is pending.” Such a notice takes the place of process, and brings the defendant before the court where the proceedings are. He is. not required to be served with a copy of the attachment papers or of the declaration, but, upon being duly notified, he can obtain the information necessary to his defense by application or inquiry in the court where the case is. It is therefore important to the defendant that the case shall be actually pending in some court, in order for this notice to be of any avail to him. An attachment issued by a notary public or justice of the peace, returnable to another court, is not pending in such other court, within the meaning of this statute, until the papers have been returned thereto. To notify the .defendant that the justice, of the peace has issued an attachment and that a constable has levied it, while the papers are still in the pocket of the bailiff, and not deposited in any court where the defendant can inspect them, is not a compliance with this section of the code. What was said in Pool v. Perdue, 44 Ga. 454, was in regard to the contents of the notice, and not as to the time when it should be served. ■ In fact the notice in that ease was served after the papers had been returned into court and the declaration in attachment had been filed. Moreover, no point appears to have been made which invoked á ruling on this question. '

2. During the term when a judgment is rendered, the presiding judge has considerable power in regard to it, and may correct errors in it. After the term has expired he can not change, revoke, or correct a judgment merely because he may deem it erroneous. McCandless v. Conley, 115 Ga. 48. Nevertheless, an irregularity in the judgment, apparent on the face of the record, may often be corrected after the expiration of the term; and irregular judgments may be made perfect. Mahone v. Perkinson, 35 Ga. 207; Leonard, v. Collier, 53 Ga. 388; Pryor v. Leonard, 57 Ga. 136; City of Atlanta v. Grant, 57 Ga. 340; Saffold v. Wade, 56 Ga. 174; Kimball v. Nicol, 58 Ga. 175; Irby v. Brown, 59 Ga. 596; Redd v. Davis, 59 Ga. 823; Guill v. Pierce, 78 Ga. 49. Greater liberality of amendment is allowed in Georgia than in some other States. That part of the judgment which was against Sweat generally was unauthorized. Carithers v. Venable, 52 Ga. 389 (4). The entire judgment was not void, and therefore the motion to set it aside as a whole failed. That motion was also predicated upon facts not appearing of record. Dismissal of the affidavit of illegality did not prevent the correction of the judgment from the record. The amendment, so far as to prevent the judgment from being a general one against Sweat, was proper, but the order passed was too sweeping, inasmuch as it sought to make a correction in regard to another party who was not before the court on this proceeding, and also struck out of the judgment the names of parties defendant altogether. The order should be so modified as to make the judgment not a general judgment against Sweat, and as to him to allow it to proceed only against the property attached.

Judgment affirmed, with direction.

All the Justices concur.