Albright-Pryor Co. v. Pacific Selling Co. , 126 Ga. 498 ( 1906 )

Cobb, P. J.

(After stating the foregoing facts.)

1. To authorize a judgment against a person who has not appeared and answered or otherwise submitted himself to the jurisdiction. of the court, there must be not only service upon such person but also a legal return of such service. Until service has been made and a legal return entered, the court is without jurisdiction, to1 enter judgment against a defendant who has not appeared.. Wood v. Callaway, 119 Ga. 801, 803, and cases cited.

2. In attachment cases the levy takes the place of service. When no steps have been taken in an attachment case to acquire jurisdiction of the defendant’s jDerson, and he has not appeared and answered or otherwise submitted himself to the jurisdiction of the court, the court is without jurisdiction to render a judgment until there has been a lawful seizure of property owned by him within the. jurisdiction of the court, and then only after a lawful return of such seizure has been duly entered. Tuells v. Torras, 113 Ga. 691 (4).

3. It is essential to the validity of the levy of an attachment issued against a non-resident that the entry of levy should show that the property was levied on as the property of defendant in attachment; and this is so whether the property be realty or personalty. Drake on Attachments (7th ed.), §449. In the absence -of such a return the court has no jurisdiction to render a judgment in the case. Tuells v. Torras, supra. When an execution against ■■several defendants is levied, it is essential to the validity of the ■levy that the entry should disclose to which of the defendants the -property seized belonged. A mere general levy upon the property -without describing it as the property of the defendant is invalid, 'and a sale thereunder will not divest the title of the real owner of -the land. Cooper v. Yearwood, 119 Ga. 44. It necessarily follows from what was laid down in the decision cited, that when an attachment against two defendants is levied, and the entry of levy simply •shows that certain property was seized as the “property of the defendant,” not disclosing which defendant was referred to, the levy fails to disclose a valid seizure of the property of either defendant, •and is insufficient as the basis of a judgment on the attachment. 'There being, at the time that the judgment on the attachment in the present case was rendered, no entry of levy other than the one above described, the judgment was void, it not appearing from the ■entry of levy that any property of the defendant against whom the judgment on the attachment was rendered had been seized, and the ■court was therefore without jurisdiction.

4. It is said that the judgment is authorized, because there was ■an entry of service of garnishment upon three railroad companies, ¡and the garnishees had not answered, and that the judgment was ■valid, and would be operative upon any property that would thereafter be disclosed by the answer of such garnishees. The garnishees not having answered, it was impossible at the time the .judgment was rendered to determine whether any property of either of the defendants had been seized, and until this fact appears the •court is without jurisdiction to render the judgment. Henry v. Lennox-Haldeman Co., 116 Ga. 9.

5. The levy having been upon personal property and the entry ■therefore being mere evidence of seizure and not the seizure itself, it is amendable. ■ The jurisdiction of the court depending upon ¡both the seizure and the entry, the amendment would not relate back so as to render the judgment valid. The case of Jones v. Bibb Brick Co., 120 Ga. 321, was not an attachment ease, and in addition to this the motion to set aside the judgment showed affirmatively that the garnishee had been properly served.

6. But it is said that the summons of garnishment issued against the bank resulted in an answer disclosing assets in the hands of the bank belonging to the defendant against whom the judgment in attachment was rendered, and therefore the court had jurisdiction to render the judgment. The code declares that when affidavit and bond to obtain garnishment have been given, summons of garnishment may issue from time to time before trial, without giving any additional bond. Civil Code, § 4709. In Alston v. Dunning, 35 Ga. 229, it was held that summons of garnishment founded on an attachment may issue after the return term of the attachment without additional affidavit and bond. In that case the attachment was-levied upon certain personal property of the defendant, and was also executed by service of summons of garnishment, all of this being done before the return term. The garnishments were subsequently dismissed, and after the return term new summons issued directed to the same garnishees. The jurisdiction of the court depends upon the proceedings had prior to the return term. Waples on Attachment (2d ed.), §295; Drake on Attachments (7th ed.), § 451(b); 1 Wade on Attachment, § 128; 2 Wade on Attachment, § 336; Nance v. Barber (Tex.), 26 S. W. Rep. 151. If there has been no seizure of the property of the defendant before the return term, the court is without jurisdiction in the matter, and all subsequent proceedings are invalid. Hence when the court had failed to acquire jurisdiction at the return term, summons of garnishment issued after that time would be invalid. It would be otherwise, however, if the court had acquired jurisdiction. In the case' above cited, in 35 Ga., the validity of the attachment was not brought into question, and therefore the decision can not be treated as authority for the proposition that a seizure of personal property before the return term, which is claimed by a third person and the claim subsequently sustained, would give the court jurisdiction to render a judgment on the attachment. If there has been a levy upon tangible personal property under the attachment and before the return term, the court would have jurisdiction to render a judgment on the attachment, provided the legal return of such levy was made before the return term, or thereafter entered nunc pro tunc before the judgment. If the attachment has been executed by serving summons of garnishment, it is of course not essential to jurisdiction that the fact that effects of the defendant have been seized under the garnishment should appear before the return term. But the jurisdiction of the court is in abeyance until the fact that there are effects in the hands of the garnishee appears by answer, or by judgment on a traverse to the answer. If the court acquires jurisdiction before the return term as a result of a seizure under levy of tangible personal property, judgment may be so entered that it will operate upon funds thereafter brought in under answers of garnishees. Steers v. Morgan, 66 Ga. 552. The seizure of the personalty would give the court jurisdiction to render an absolute judgment as to the property so seized, and a provisional judgment as to that which might thereafter be brought in under proceedings against the garnishees. However, if the attachment is executed by service of summons of garnishment only, then no judgment can be rendered until it is made to appear to the court that the effects of the defendant have been seized under garnishment proceedings. In the present case the court did not acquire jurisdiction as to the property levied on, for the reason that there had been no legal entry of the levy prior to the judgment. At the time the judgment was rendered it did not appear from the answer of the garnishees who had been summoned to answer at the return term that any of the effects of the defendant were in their hands. The validity of the garnishment sued out after the return term depending upon the jurisdiction of the court having been acquired before the return term, the court was without authority to enter judgment on the answer of such garnishee, until it appeared from the answer of the other garnishees whether such jurisdiction had been acquired.

7. An amendment was offered to the motion to set aside the judgment, in which other grounds were added to the motion. Objection was made to this amendment, on the ground that it added a new cause of action. We do not think the law prohibiting the addition of new causes of action by amendment has application to a proceeding of this character, and the court did not err in allowing the amendment.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.