BAKER v. AULTMAN & COMPANY

Supreme Court of Georgia1899-04-22

107 Ga. 339

Summary · law.co

Holding. The judgment was reversed. A valid attachment levy on land requires an official act by the sheriff that demonstrates actual seizure or control of the property sufficient to give constructive notice to the owner; an informal communication from the plaintiff's attorney and a written entry of levy without any physical act of seizure is insufficient to give the court jurisdiction.

C. Aultman & Company obtained an attachment against Baker, a non-resident, and the sheriff entered a levy on the attachment. However, the sheriff took no physical action to seize or take possession of the land—the entry was simply written by the plaintiff's attorney and signed by the sheriff in a town miles away from the property. Baker received informal notice only when the plaintiff's attorney happened to inform him of the attachment during a chance meeting. After judgment was rendered against the land, Baker filed an affidavit challenging the validity of the proceeding, claiming he was never properly served and received no official notice. The trial court directed a verdict against his challenge.

The appellate court reversed, holding that the procedures followed were constitutionally insufficient. The court explained that an attachment levy on land owned by a non-resident must involve some official act by the sheriff that actually seizes the property or exercises control over it in a way that would alert the owner to the pending suit. Simply making a written entry in a distant location, without any physical act showing possession or control, cannot constitute valid notice or give the court jurisdiction over the property. The informal communication from a private attorney cannot substitute for the official acts required by law.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a written entry of levy, without physical seizure or possession, constitutes valid attachment on non-resident's land
What acts are necessary to provide constructive notice to a non-resident property owner in an attachment proceeding
Whether informal notice from a plaintiff's attorney can satisfy due process and statutory requirements for attachment

Procedural posture

Baker filed an affidavit of illegality challenging the attachment levy after judgment was rendered against his land, and the trial court directed a verdict against the illegality.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, C. J.

C. Aultman & Company sued out an attachment against Baker, a non-resident of the State, and the-sheriff made an entry of levy upon the attachment. It appears that the sheriff did not go upon the land or seize it or do-any other act which would indicate that he had taken possession of it. The plaintiff’s attorney wrote out the form of the entry of levy upon the attachment, and this was signed by the sheriff in a town seven miles distant from the land levied upon. There was no effort made by the sheriff to give Baker any sort of notice. The only notice it is claimed he received was that the plaintiff’s attorney met him in the city of his residence and informed him of the attachment and levy. Judgment was rendered against the land, and it was advertised to be sold by the sheriff. Thereupon Baker filed an affidavit of illegality,, upon the ground that he had never been served in the action, that he had never appeared and pleaded nor authorized any one to do so for him, that he had never waived service, and that he had never had any notice of the pendency of the attachment. On the trial of the illegality, when these facts were made to appear, the court directed a verdict against the illegality.

We think the court erred in directing a verdict against the illegality. In order to constitute a valid levy of an attachment upon land in this State and to give the necessary notice to the non-resident owner, the officer must do some act which shows that he has seized the property and exercised dominion over it, — some act that is sufficient to put the owner or his tenant upon notice that the officer has seized the land and is in possession of it. Otherwise, the court acquires no jurisdiction over such land. The levy of the attachment is the commencement of the suit against the non-resident, and there must be something done by the officer to give the owner •constructive notice that such a suit is pending, before the court acquires jurisdiction to render judgment. There must be a seizure of the property, and the seizure must be such as to affect the owner with notice of the levy. Without it the court has •no jurisdiction, and can not proceed to judgment against either the defendant or his property. The law must provide in some way for notice to the defendant, so that he may appear and plead; otherwise it would be taking his property without due process of law. The question now under consideration has been fully discussed and decided by this court in the cases of Smith v. Brown, 96 Ga. 274, New England etc. Co. v. Watson, 99 Ga. 733, and McCrory v. Hall, 104 Ga. 666; and it is useless to further elaborate the subject, except to say that the levy •of an attachment, being the commencement of the suit, is different from the levy of an execution founded upon a judgment against the owner of the property levied upon. AH that is necessary in the latter case is for the sheriff to make his entry upon the fi. fa., and give notice to the tenant in possession. This is, in this State, a legal levy; for the defendant has already had his day in court and has suffered the judgment to go against him. The levy of an attachment is quite different. •Such levy is genérally the notice of the suit, and the statute does not provide for any other or further notice to the owner of the property. If he be a non-resident and his land is unoccupied, simply making an entry of levy could give him no notice of the pending proceedings.

We think that the notice given Baker by the plaintiffs’ .attorney in Chattanooga, Tenn., was not sufficient. The notice required to be given is, in our opinion, to be given by an •official act which will affect the owner with constructive notice of the seizure of the property. The statement of the attorney to Baker was not such an official act as would give the court jurisdiction. Counsel for defendant in error relied upon the •case of Steers & Co. v. Morgan, 66 Ga. 552. The facts of that case were different from those shown here. In that case it appears that the attachment was levied and a garnishment served upon parties indebted to Steers & Co. The garnishment seized and impounded the property in the hands of the garnishees. This was an official act, and was in itself sufficient notice; for by reason of the garnishment founded upon the attachment the property was seized. Besides, the garnishees gave actual notice that the property had been held up in their hands. The court held that the notice was sufficient to put the defendants-upon inquiry as to the attachment proceedings.

Judgment reversed.

All the Justices concurring.