Opinion
36235.
DECIDED JULY 9, 1956. REHEARING DENIED JULY 27, 1956.
Attachment. Fulton Civil Court — Appellate Division. April 2, 1956.
Isidore A. Blanch, for plaintiff in error.
Lucian J. Endicott, contra.
The Appellate Division of the Civil Court of Fulton County did not err in the judgment for any reason assigned by counsel for the plaintiff.
DECIDED JULY 9, 1956 — REHEARING DENIED JULY 27, 1956.
This case originated in the Civil Court of Fulton County wherein the Universal Match Corporation, hereinafter called the plaintiff, brought suit against Theodore Hendricks, t/a Dixie Queen Produce Company, hereinafter called the defendant. The case involved a suit for damages by the plaintiff against the defendant by reason of the alleged failure of the defendant to accept delivery of 32,500 specially printed match books. The sum involved was $160.23, such sum representing the difference between the contract price and the result of said match books as salvage.
The defendant has a place of business in Fulton County, Georgia, but resides in Miami, Florida; therefore suit was filed by the plaintiff in attachment on the ground that the defendant resides outside the State. When the case originally appeared in the Civil Court of Fulton County the record shows that the case was returnable to the March, 1955, term of that court; that the plaintiff filed affidavit and bond for attachment on February 23, 1955, and attachment was issued on said date returnable to the March, 1955, term of the court; that on February 25, 1955, the attachment was levied on one half-ton Chevrolet truck as the property of the defendant; that on March 2, 1955, the defendant replevied the property by filing a replevy bond; that on April 13, 1955, the plaintiff filed a declaration with certificate showing that a copy of said declaration was mailed to the defendant at Miami, Florida, by registered mail; that on April 19, 1955, the plaintiff made a motion to file said declaration nunc pro tunc as of April 2, 1955, upon the ground that a deputy clerk of the Civil Court of Fulton County had informed counsel for the plaintiff that attachment was served too late to be answered at the March term and that it would be answerable at the April term and that the declaration was offered for filing and would have been filed at the end of the March term by counsel except for the information received from the deputy clerk that it was answerable in the April term. The motion was supported by an affidavit from a deputy clerk. This motion was denied by the judge by an oral ruling and the plaintiff excepted thereto. On April 22, 1955, the defendant filed a written motion to dismiss, and an answer. On September 26, 1955, the plaintiff filed an amendment to the affidavit of attachment and an order was entered on September 26, 1955, allowing said amendment subject to demurrer. No renewed demurrer or renewed motion to dismiss was filed. The case came on for trial before one of the judges of the Civil Court of Fulton County on November 16, 1955. The defendant at this time made an oral motion in the nature of a general demurrer to dismiss the proceedings against him, which motion was sustained by the trial judge and the proceedings were dismissed on that date. The plaintiff excepted to the ruling of the court both in overruling and denying his motion to have the declaration filed nunc pro tunc within the March term and to the ruling sustaining the oral motion to dismiss and entering judgment for the defendant. An appeal was taken to the Appellate Division of the Civil Court of Fulton County on April 2, 1956. The judgment of the single judge was affirmed. The appeal here is based on the judgment of the appellate division.
Counsel for the plaintiff argues that the motion to file the declaration nunc pro tunc should have been allowed. The affidavit, bond and attachment shows on its face that it was executed and filed February 23, 1955, and was returnable to the March term, 1955, of the trial court. Counsel cites a number of cases in support of his contention that the case should be reversed. Counsel cites and quotes from Bailey v. Kennett, 32 Ga. App. 255 ( 122 S.E. 804). That case is not in point because the facts there as compared with the facts in the instant case do not warrant that ruling superseding the rules of the Civil Court of Fulton County which must perforce be followed by attorneys practicing therein. Neither is Earle v. Sayre, 99 Ga. 617 ( 25 S.E. 943), in point under the facts of that case as compared to the case at bar. In Coral Gables Corporation v. Hamilton, 168 Ga. 182 ( 147 S.E. 494), counsel quotes headnote 1a. That was a case in equity to determine jurisdictional rights and certain other rights which do not appear in the case at bar and moreover the ruling there is not a ruling on the point now before us. Counsel also cites King v. Knight, 42 Ga. App. 269 ( 155 S.E. 784). In that case it appears that the declaration and attachment was handed to either the clerk or the deputy clerk for the purpose of being filed. That, of course, was tantamount to being filed. In the instant case counsel did not tender the declaration and attachment, but merely stated that he was ready to file said declaration but failed to file because of the erroneous statement of a deputy clerk. In Rock Island Paper Mills Co. v. Todd, 37 Ga. 667, the ruling allowing the declaration to be filed nunc pro tunc was based on an early announcement by the court that the appearance term of court would be dispensed with, and moreover a consent order was passed dispensing with the call of the appearance docket and allowing pleas and exceptions to be filed at the next term. Therefore that case is not binding authority for reversal of the instant case. Under the facts of this case and based on the rules of the Civil Court of Fulton County the trial court did not err in refusing to allow the declaration to be filed nunc pro tunc. It follows that this ground of the appeal is without merit. Counsel for the plaintiff also contends that by his amendment allowed on September 26, 1955, subject to demurrer, he complied with the rules of the Civil Court of Fulton County concerning declarations in attachment involving less than $300. Counsel cites Code § 81-1312 in support of this contention. We concede that this is a proper concept of the law but does not apply to the facts of the case at bar. The following cases are also cited in support of the position of counsel for the plaintiff in relation to his method of pleading: Cincinnati, New Orleans c. Ry. Co. v. Pless, 3 Ga. App. 400 ( 60 S.E. 8); Dolvin Co. v. Hicks, 4 Ga. App. 653 ( 62 S.E. 95); Penn Watson v. McGhee, 6 Ga. App. 631 ( 65 S.E. 686); Silverman Son v. Sloat, 11 Ga. App. 193 ( 74 S.E. 938); General Accident, Fire c. Assurance Corp. v. Way, 20 Ga. App. 106 ( 92 S.E. 650); Kinney v. Kinney, 20 Ga. App. 816 ( 93 S.E. 496); Busby Son v. Elliott, 22 Ga. App. 391 ( 95 S.E. 1014); Middlebrooks v. Carson, 23 Ga. App. 665 ( 99 S.E. 151); Holloman v. Baird, 36 Ga. App. 49 ( 135 S.E. 494); Thompson v. Wright, 22 Ga. 607; Bruce v. Conyers, 54 Ga. 678; Powell v. Cheshire, 70 Ga. 357 (48 Am. R. 572) and Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 ( 119 S.E. 25). We have read the cases cited by counsel and find that no case holds that the filing of a declaration and attachment is not necessary. Neither does any case cited hold that such filing is waived by the appearance on the part of the defendant. Our own research has developed no authority which holds that the plaintiff in attachment was not required to file his declaration at the first term. It follows that there was nothing to amend by. In Cochran Furniture Co. v. Corbett, 49 Ga. App. 625 (2) ( 176 S.E. 827), the court held: "No declaration in attachment having been filed in the attachment proceedings, at the first term, or anything equivalent thereto, in accordance with the rule of the municipal court of Atlanta with reference to the filing of declarations in attachment proceedings, the judge did not err in this case in holding that such proceedings were void." Later on in the same opinion this court held: "No reason can excuse a plaintiff in attachment from filing his declaration in attachment at the first term. "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. The words of the statute are mandatory. "The plaintiff shall file his declaration at the first term." . . An attachment without a declaration is void and may be attacked anywhere. Calloway v. Maxwell, 123 Ga. 208.'" The construction placed by a trial court upon one of its rules is usually conclusive and an appellate court will not interfere with such construction unless it is shown that such construction is manifestly wrong. See Roberts v. Kuhrt, 119 Ga. 704 ( 46 S.E. 856).
The Appellate Division of the Civil Court of Fulton County did not err in the judgment for any reason assigned by counsel for the plaintiff.
Judgment affirmed. Townsend and Carlisle, JJ., concur.