101 Ga. 598 | Ga. | 1897
Barnes, sheriff of Fulton county, brought his action against Bluthenthal & Bickart, in the city court of Atlanta, alleging, that on February 4, 1894, he as such sheriff duly exposed for sale, under order of the superior court of Fulton county, in the case of Mrs. E. A. Rose v. Rose & Son, the stock of liquors belonging to Rose & Son; that defendants became the purchasers at $1,250, being the highest and best bidders; that they refused to comply with their bid and pay the same,' whereupon another order was procured in the same case from said superior court, under which last order the liquors were exposed to sale by plaintiff on February 18, 1895, at the same place, and defendants again bid on them, but at the second sale they brought only $1,201; that defendants were notified, when they refused to comply with their bid at the first sale, that the liquors would be resold at their risk; that the storage for the liquors, pending the readvertisement and sale, was $62.50, which amount and the $49 difference between the bids by the defendants at the first and second sales they had refused to pay. An amendment was allowed, so that the suit should proceed in the name of Barnes, sheriff, for the use of Mrs. E. A. Rose. When the case was called for trial, the defendants demurred orally to the declaration, and moved to dismiss the same, on the grounds,- (1) that the plaintiff could not recover the amount sued for, in his capacity as sheriff; and ( 2) that the item for loss by storage charges, pending resale, could not be recovered by the sheriff, and as that fact appeared by the declaration, the court was without jurisdiction and the case should be dismissed. The demurrer was sustained and the case dismissed; whereupon the plaintiff excepted.
Judgment reversed.