5 Ga. App. 162 | Ga. Ct. App. | 1908
This was a suit upon a forthcoming bond, in which the judge of the superior court directed a verdict for the defendant.. It appears, that a certain fi. fa., in favor of Duffell, which was issued upon the foreclosure of a laborer’s lien, was levied upon ■personal property, including a soda fountain and fixtures, and that a claim was interposed by M. C. Yandiver, which was tried in a justice’s court, and that thereafter the claimant foreclosed a mortgage, and the mortgage fi. fa. was levied upon property included in the former levy, and upon other property, comprising a stock of goods; that a ten-day order was obtained from the judge of the superior court, and that the property described in the mortgage fi. fa. was sold thereunder. The claimant gave both a claim bond and a forthcoming bond; and, when the issue was found in ■favor of the plaintiff in fi. fa. and the property was not forthcoming, suit was instituted on the forthcoming bond. In the meantime, however, Duffell had placed his fi. fa. in the hands of the -sheriff, by whom the mortgage fi. fa. had been levied, claiming a priority as to the proceeds of the sale, and, upon a rule brought •against the sheriff, had accepted the portion of the fund awarded by the court to his fi. fa. Upon the suit on the forthcoming bond, in the justice’s court, judgment was rendered in behalf of the plaintiff in fi. fa. for the balance after deducting the amount (received and credited upon his fi. fa.) which had been derived from the sale of the property under the mortgage fi. fa. From this judgment of the justice, the principal and his surety on the forthcoming bond appealed to the superior court.
Counsel for the plaintiff in error insists that, as, under our ruling in Smith v. Davis, 3 Ga. App. 419 (60 S. E. 199), the levying officer is presumed to have done his duty and taken the bonds required by law, and as copies of the bonds are attached to the, summons, it can be inferred that «tiré "‘amount of "the plaintiff’s claim was only $35. The argument is that, the law requiring a levying officer to take the forthcoming bond in double the value of the-property levied on at the time of the levy, as estimated by him,, and the claim bond being for double the amount of the execution levied, the plaintiff could not recover exceeding $35 principal, and the interest which might have accrued. It may be that this would be all that the plaintiff could have recovered, but it does not follow that it is all that he could have claimed or did claim. He would be entitled to recover any costs that might have accrued;, and this amount was undetermined, and might, as a matter of fact, have carried plaintiff’s claim for damages, due to the breach of the forthcoming bond, above $50. What was said by this court in. Southern Express Co. v. Briggs, 1 Ga. App. 294 (57 S. E. 1066), with reference to a consideration of the evidence as well as of the summons, in determining the question of jurisdiction, had refer
In the argument much stress was laid on the agreement between the parties, by which the plaintiff was kept away from the sale. With regard to this it is only necessary to say that the result of
Judgment affirmed.