26 Ga. App. 86 | Ga. Ct. App. | 1920
Only beadnotes 2 and 5 need elaboration. The principles underlying each are the same, and they will be covered by the same general discussion. This case arose by reason of the levy of an execution, the giving of a forthcoming bond, and a breach of the bond, the action being against the principal and the surety on the bond. Upon the trial the jury found in favor of the defendants, and the plaintiffs excepted. It is alleged that the
In Aycock v. Austin, 87 Ga. 568 (13 S. E. 582), it was held that where a defendant in execution gave a forthcoming bond and failed to produce the property at the time and place of sale, he was liable for the breach of the bond even though a third person on the day of sale filed a claim to the property which was accepted by the sheriff. The Supreme Court said in that case: “ The defendants obligated themselves to deliver the cotton to the sheriff on the day of sale. When that day arrived and they failed or refused to deliver the cotton, there was a breach of the bonds. The fact that a third person on the same day filed a claim to the cotton did not release Aycock and Almond from their obligation to deliver the cotton to the sheriff on that day, nor did the fact that the sheriff accepted the claims and returned them to the court release them. When the condition of the bonds was broken, the sheriff had the right to commence his action thereon, and to recover the value of the cotton for the use of plaintiff in fi. fa. When he recovers the money it will be his duty to hold the same until the claim cases are disposed of.” In the instant case the defendant or his bondsman should have delivered the cotton levied on to the sheriff at the time and place of sale so that it could have been sold by the sheriff and the proceeds thereof properly distributed under order of the court. In Barfield v. Covington, 103 Ga. 192 (1) (29 S. E. 760), the Supreme Court says: “The forthcoming bond given to the sheriff by Barfield as principal, and Owens as surety, was executed under section 5436 of the Civil Code [Civil Code of 1910, § 6041], and the failure to deliver the property described in the bond, at the time and place of sale, was a breach thereof, for which the sheriff could recover of them the value of such property. They could not relieve themselves of their obligation to produce the property by subsequently applying it to the payment of rent due by Barfield to Owens. -While Owens had a landlord’s lien for rent upon the crops grown upon the rented premises during the year 1894, superior to the lien of the common-law judgment of Bullock, Bush & Co., yet, in order for him to have realized the benefit of such superior lien, under the facts of this case, it was necessary for him to have sued out a distress warrant against Barfield, placed it in the hands of the sheriff, and demanded
Under the rulings quoted above a breach of the bond was clearly shown. The petition sufficiently alleged that the plaintiff was damaged. It showed that a levy was made and a forthcoming bond given, that the property was only advertised for sale, and that there was a failure to deliver the property at the time and place of sale, and it alleged that by reason of the breach of the bond the defendants were indebted in the amount due on the execution levied. The proof supported these allegations. The measure of damages in suits on forthcoming bonds, as fixed by section 6043 of the Civil Code of 1910, is “the value of the property at the time of its delivery under the bond with interest thereon, ” with the exception that “ the amount of the damages shall in no case exceed the amount of the execution levied. ” The value of the property levied on in this case was admitted to be $1,267.08, and this is more than the total amount due on the execution. The condition of the bond given in this case is the same as that required by section 3301 of the Code of 1910; and in Carr v. Houston Guano &c. Co., 105 Ga. 268 (1) (31 S. E. 178), the Supreme Court said: “In an action for an alleged breach of a forthcoming bond, executed under the provisions of section 2766 of the Civil Code [Civil Code of 1910, § 3301], the obligors are liable for the full value of the property replevied,
Counsel for the defendants insist that inasmuch as two of the older executions were levied on this property, and were superior liens, the plaintiffs were not damaged. A sufficient reply to this is that the sheriff did not seize the property under the older executions, but allowed it to remain in the hands of the defendant in execution. The plaintiffs in this case were entitled to have the cotton levied on sold and their rights adjudicated by the courts; and if the defendant in execution or his bondsman suffers by reason of the failure to produce the property for sale as provided in the bond, he has no one to blame but himself.
Judgment reversed on main hill of exceptions; affirmed on cross-hill.