O.C.G.A. § 18-3-15 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3236, former Code 1873, § 3312, former Code 1882, § 3312, former Civil Code 1895, § 4560, and former Civil Code 1910, § 5107 are included in the annotations for this Code section. Traverse need not be sworn to. Ouzts v. Seabrook, 47 Ga. 359, 1872 Ga. LEXIS 342 (1872) (decided under former Code 1868, § 3236). Demurrer (now motion to dismiss) may be filed for lack of affidavit and attachment dismissed. DeLeon v. Heller, Hirsch & Co., 77 Ga. 740, 1886 Ga. LEXIS 395 (1886) (decided under former provisions).

Denial of truth of ground for attachment may be treated as traverse. Cooley v. Abbey, 111 Ga. 439, 36 S.E. 786, 1900 Ga. LEXIS 557 (1900) (decided under former Code 1893, § 4560). Third-party claimant to property levied upon. - Claimant of property levied on by execution issued on judgment founded on attachment cannot, on trial of claim, traverse grounds on which attachment issued. Foster v. Higginbotham, 49 Ga. 263, 1873 Ga. LEXIS 347 (1873) (decided under former Code 1882, § 3312). Burden of proof. - On trial of traverse, burden of proof is on plaintiff in attachment. Oliver v. Wilson, 29 Ga. 642, 1860 Ga. LEXIS 269 (1860) (decided prior to codification of this principle).

Admissibility of evidence to sustain traverse after replevy of attached property. - When ground of attachment is duly traversed, defendant is entitled to introduce evidence to sustain the defendant’s traverse, and presiding justice errs in holding that it is too late to do this after the defendant has replevied property attached. Brumby v. Rickoff, 94 Ga. 429, 21 S.E. 232, 1894 Ga. LEXIS 106 (1894) (decided under former Code 1873, § 3312). Plaintiff is competent witness as to traverse by administrator regarding contract entered with intestate. - When the plaintiff makes an affidavit for purpose of obtaining attachment against an administrator, and the administrator files traverse to affidavit, the plaintiff is a competent witness upon trial of issue formed, even though the contract, which is the foundation of the plaintiff’s claim, was made with intestate. Effect of verdict for the defendant, upon such issue, is a dismissal of attachment. Ouzts v. Seabrook, 47 Ga. 359, 1872 Ga. LEXIS 342 (1872) (decided under former Code 1868, § 3236). Waiver. - Objections to form of affidavit are waived by appearance of the defendant, and pleading to the merits. Pool v. Perdue, 44 Ga. 454, 1871 Ga. LEXIS 401 (1871) (decided under former Code 1868, § 3236).

Defendant in attachment does not waive traverse to the plaintiff’s affidavit by afterwards pleading to the merits of the action. The two defenses are perfectly consistent, the former going to the writ and the latter to the declaration. Parker v. Brady, 56 Ga. 372, 1876 Ga. LEXIS 293 (1876) (decided under former Code 1868, § 3236). Effect of finding issue in defendant’s favor. - When issue on traverse is found in favor of the defendant, all defendant gains is that levy falls, and if judgment is obtained on merits the judgment does not date from time of levy, but the judgment would take lien on property attached as well as on other property from date of judgment only. Blakely Milling & Trading Co. v. Thompson, 34 Ga. App. 129, 128 S.E. 688, 1925 Ga. App. LEXIS 66 (1925) (decided under former Civil Code 1910, § 5107). Intervenor’s right to traverse affidavit of attachment. - Construing O.C.G.A. §§ 18-3-15 and 18-3-50 in pari materia, in light of the due process requirements, the intervenor has the same right to traverse the plaintiff’s affidavit of attachment as the defendant, and once the affidavit of attachment is traversed, the procedure to follow is the same as that accorded the defendant. Trax, Inc. v. Pentagon Aero-Marine Corp., 162 Ga. App. 276, 290 S.E.2d 196, 1982 Ga. App. LEXIS 3120 (1982).

RESEARCH REFERENCES ALR. Filing bond to secure release or return

of seized property as appearance, 57 A.L.R.2d 1109.