Opinion
39526.
DECIDED JUNE 25, 1962.
Attachment, etc. Fulton Superior Court. Before Judge Whitman.
Robert Golden, Kermit C. Bradford, for plaintiff in error.
Tyler, Burns Tyler, L. D. Burns, Jr., contra.
1. (a) Under the provisions of Code § 8-601, the declaration in a case commenced by attachment must be filed at the term of court to which the attachment is returnable, the "first term" referred to in said Code section being the return term of the writ of attachment.
(b) The failure of the plaintiff to file the declaration at the proper term rendered the instant attachment proceeding void and the trial court did not err in dismissing the attachment.
2. (a) The attachment having been dismissed, the case could only proceed as an in personam common-law action (personal jurisdiction having been acquired over the defendant), commenced as of the date of the filing of the petition in the superior court.
(b) The petition affirmatively showing on its face that the plaintiff's cause of action was barred by the statute of limitation and there being no facts alleged to disclose that the operation of the statute had been tolled, the trial court did not err in sustaining the defendant's motion to dismiss the petition on said ground.
DECIDED JUNE 25, 1962.
Attachment was sued out by Mrs. Lucile L. Nix against Mrs. Ida Davis on April 28, 1960, in the Civil Court of Fulton County, returnable to the "June term" 1960, of the Superior Court of Fulton County. It was levied on the same day by the levying officer who returned the attachment to the civil court rather than to the superior court as directed and it was not thereafter filed in the office of the clerk of the superior court until October 27, 1960, when the attachment and declaration in attachment (and the defendant's answer and a plea to the jurisdiction) were transmitted to the superior court by the clerk of the civil court and filed therein. (On June 6, 1960, prior to the transmittal of the papers to the superior court, the defendant had filed in the civil court a motion to dismiss the attachment and declaration in attachment and said motion had been denied on October 20, 1960). On December 20, 1960, the defendant's plea to the jurisdiction was voluntarily dismissed in the Superior Court of Fulton County and on January 15, 1962, the case came on to be tried by a jury in that court. On that date the defendant filed a motion to dismiss the attachment on the ground that the attachment and the declaration in attachment had not been filed at the proper term of the superior court. This motion was sustained and the case proceeded to trial on the plaintiff's petition as an in personam common-law action (personal jurisdiction having been acquired over the defendant). On January 16, 1962, the defendant filed a written motion to dismiss the petition, which had been filed in the superior court on October 27, 1960, on the grounds that the same showed on its face that the cause of action upon which it was predicated (personal injury action based on negligence) had accrued on April 29, 1958, and that the action not having been filed until October 27, 1960, was therefore barred by the statute of limitation. This motion was sustained and the plaintiff's petition dismissed. The bill of exceptions assigns error on the order of January 15, 1962, dismissing the attachment and on the order of January 16, 1962, dismissing the plaintiff's petition.
1. Code § 8-601 provides that: "[W]hen the attachment is returnable to the superior or county court, the plaintiff shall file his declaration at the first term." Under the mandatory provisions of this Code section, the declaration in a case commenced by attachment must be filed at the term of court to which the attachment is returnable, "the first term" as quoted in the above Code section being the return term of the writ of attachment. Russell v. Faulkner, 89 Ga. 818 (2) ( 15 S.E. 756). "The failure of the plaintiff to file his declaration in attachment at the first term is a very serious defect, so serious, indeed, as to make it impossible to render any valid judgment in the case" ( Nixon v. Russell Piano Co., 51 Ga. App. 399 (4), 180 S.E. 743); and the attachment is accordingly rendered void when the declaration is not filed at the proper term. Callaway v. Maxwell, 123 Ga. 208 ( 51 S.E. 320). It has been held that "No reason can excuse a plaintiff in attachment from filing his declaration in attachment at the first term." Cochran Furniture Co. v. Corbett, 49 Ga. App. 625, 627 ( 176 S.E. 827). This is true notwithstanding the failure of the levying officer to make the actual return of the attachment itself at or before the return term. Russell v. Faulkner, 89 Ga. 818 (2), supra. See Universal Match Corp. v. Hendricks, 94 Ga. App. 251 ( 94 S.E.2d 117), in which it was held that the failure of the plaintiff to file his declaration at the first term rendered the attachment void irrespective of the fact that the plaintiff had been informed by the clerk of court that the case would not be returnable until the next term.
The writ of attachment in the instant case was issued on April 28, 1960, and levy was made thereunder on the same day. The attachment therefore was by operation of law returnable to the July term of Fulton Superior Court, said term being the first term of that court commencing not less than 20 days after the issuance of the attachment. Code § 8-117; Bailey v. Kennett, 32 Ga. App. 255 ( 122 S.E. 804). The Clerk of the Civil Court of Fulton County, however, in drawing the writ of attachment had erroneously directed that it be returned to the "June term" of Fulton Superior Court, there being no such term of court. This defect, however, was not such as would render the attachment void, if the attachment had in fact been returned to the proper term ( Kent Co. v. Downing, 44 Ga. 116); for while the attachment should give direction for its return, it is the law, and not the written direction to the levying officer, which endows the court with jurisdiction. Stalvey v. Varn Motors Finance Co., 56 Ga. App. 696 (3) ( 193 S.E. 627).
The attachment in the instant case, however, was not in fact returned to the proper term (July term). Nor was the declaration in attachment filed by the plaintiff at the term of court to which the attachment was returnable as required by the mandatory provisions of Code § 8-601; and it necessarily follows from the decisions cited above, that the failure of the plaintiff to file the declaration at the proper term of court rendered the attachment proceedings null and void notwithstanding the fact that the declaration itself had not been properly returned by the levying officer. Russell v. Faulkner, 89 Ga. 818, supra. It was not error therefore for the trial court to dismiss the attachment.
2. The trial court having properly dismissed the attachment proceeding as being null and void since the declaration in attachment had not been filed at the proper term, it necessarily follows that the case could only proceed as an in personam common-law action commenced as of the date of the filing of the declaration or petition in the superior court, that is, October 27, 1960. Accordingly, since the petition affirmatively disclosed that the cause of action upon which it was predicated had accrued on April 29, 1958, a date more than two years prior to the filing of the petition, and since the statute of limitation in this case, the same being a personal injury action, is two years ( Code § 3-1004), and there being no facts appearing on the face of the petition to disclose that the operation of the statute had been tolled, the trial court did not err in sustaining the defendant's motion to dismiss the petition on the ground that the plaintiff's action was barred by the statute of limitation. Marbut v. Hamilton, 32 Ga. App. 187 ( 122 S.E. 738); Davis v. Boyett, 120 Ga. 649 ( 48 S.E. 185); Louisville c. R. Co. v. Persons, 18 Ga. App. 84 ( 88 S.E. 905); Little v. Reynolds, 101 Ga. 594 ( 28 S.E. 919).
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.