Warren v. Purtell , 63 Ga. 428 ( 1879 )

Bleckley, Justice.

1. The claimant’s counsel no doubt reasoned well. The circumstances indicated that the case would not be reached,, or if reached, that it would not he tried so early in the term. But the presence or absence of parties and counsel when their cases are called in their order for trial, cannot be left to sound reasoning. Probability cannot be made the measure 'of progress in the dispatch of business. As we all know, sometimes there is a drag and sometimes a run ; and those having business to attend to in court must bear in mind that a wide variation from the average rate of progress may occur. Indeed, it is always probable that something improbable will happen.

2. For want of & primafacie case, the court may dismiss the levy,- but when such a case has been made by the plaintiff in fi. fa., he is entitled to a verdict unless it is overcome by claimant or the claim is withdrawn. We do not think it is the right of the court, much less its duty, to dismiss the claim merely because it is unsupported by any evidence.

3. The attachment should have been directed to all and singular the constables of this state. Code, §3273. But the direction was amendable, Id., §3316 ; and the levy was by a constable, and therefore a proper officer. Neither the writ nor the levy was void, the misdirection being curable.

Judgment affirmed.