Hochstadter Bros. v. Harrison , 71 Ga. 21 ( 1884 )

Adams, Judge.

An attachment, under the “fraudulent debtors’ act,” was issued in favor of Hochstadter Brothers, as plaintiffs, against Hill & Shumate, as defendants, returnable to the June term, 1882, of the superior court of Macon county. This attachment was executed by levy on a stock of goods, by service of garnishment summons, and by levy on real estate. To the levy on the stock of goods J. M. Harrison interposed a claim. The defendants, Hill & Shumate, filed their motion to dissolve said attachment, upon which a rule nisi was granted, and also their traverse, denying the truth of the grounds of said attachment. The plaintiffs gave notice that they would ask for a general judgment against the defendants, and at said June term filed their declaration in attachment, the claim and all the proceedings being returnable to said J une term.

At said term, plaintiffs filed two petitions for the removal of said cause to the circuit court of the United States, alleging that they were citizens of the state of New York, and that the defendants and the claimant were all citizens of Georgia. In one petition they asked for the removal of the attachment proceedings against Hill & Shumate; in the other they asked for the removal of all the proceedings, including the claim of Harrison. The court below granted the former motion, and allowed the removal of the attachment against Hill & Shumate only, and denied the latter motion, refusing to remove the claim of Harrison. To the decision refusing to remove said claim, the plaintiffs excepted, and this exception presents the only question here made.

A claim to property, levied on under final process of a state court, is not removable. The claim is but an incident of the main proceeding, ande annot be detached from it. 63 Ga., 446, Besser vs. Munford, adm'r; 59 Ga., 512, Harrison vs. Shorter ; 16 Wall., 190, Bank vs. Turnbull & Co.

Where, however, a claim is filed to property levied on under attachment, and the attachment is removed, and the claimant is a resident of the same state as the defendants, the claim should be removed with the attachment.

Judgment reversed.