Bearden v. General Motors Acceptance Corp.
122 Ga. App. 180
Ga. Ct. App.
1970
Check Treatment

*1 excused), a motion for a continuance or such other relief as necessary deemed point. could have been made at that In this proceed case the defendant presented chose to and his case. He complain deprived can not that he was of a full complete and presentation if of his case he did application not then invoke procedures securing available for right. 3. The Company Transamerica Insurance was an intervenor

the action as’ allowed an amendment to the uninsured mo (Code 1967, (d)). pp. torist law. Ga. L. Ann. 56-407.1 § Defendant Stone was uninsured. "Evidence of insurance is proper where the party insurer is a proceeding.’” to the Jiles Smith, 730). Special ground 5 of the motion for new trial was without merit. remaining special grounds four any are without merit. J., Quillian, J., January July

Submitted 1970 Decided Palmour, Palmour, Cook & A. Cecil appellant. Gleason,

Frank M. appellees. 45314. BEARDEN et al. v. GENERAL MOTORS

ACCEPTANCE CORPORATION. Hall, Presiding Judge. Defendant appeals bondsman from the in a suit on a bond for the difference

between the value at the time of the bond and its value when turned over to the sheriff for previ- sale. For a appeal ous in this case see Acceptance General Motors Corp. v. Bearden,

1. Code recovery 39-304 allows on a forthcoming bond for the

diminished value of has been levied prior retained and judicial used sale. prop- The value of the erty is fixed officer in order to set the amount of the forthcoming bond. This amount the value of the the claimant. Dickens v. set Maxey, Here the sheriff appar- the value of the automobile objection. made ently neither defendant nor the debtor that, opinion, in his the automobile sheriff also testified (1964). at the time the bond was well worth this amount *2 disputing that the automo- introduced no evidence Defendant by The car was sold bile had a value of at that time. $285, highest outcry years for the two and one-half later produce testimony from the mechanic who bid. Defendant did regularly the car that it was worth as much had serviced However, debtor, given. when sold as when the bond was lawyer present sale and the defendant and their were all at the objection any attempt made neither an to its conduct nor to bid up property brought at the Evidence of what sheriff’s sale is admissible on the of its value. jury was author-

ized to find that the value of the automobile at the time of sale sale, $285; actually brought upon was the amount that its $1,315; during by value had diminished the course of the bond and to render a verdict for that amount. charging Defendant contends the court erred in that the value property prima as set the bond is property

the value as the defendant and that presumption there is a performed duty setting sheriff his valuation, charging without also that facie evi- presumption dence and Assuming are rebuttable.

deciding error, they that these omissions were were harmless fact, did defendant introduce rebuttal evidence points. on these denying The court did not err in defendant’s motion to dismiss complaint allowing nor in it to be amended over defend- Co., objection. Byrd

ant’s Ford Motor 81A-115(a). Code Ann. J., Jordan, J., Eberhardt, Pannell, P. Deen, Quillian Whitman, JJ., Evans, J., dissents. Argued May Rehearing 1970 Decided June July

denied Sloan, L. appellants.

Eva Martin, Snow, Duke, Napier, Joseph Cubbedge Grant & B. Snow, Stapleton, M. appellee. Charles

Evans, Judge, dissenting. majority opinion I dissent from the and the of affirmance. This is a suit for the breach of a replevy bond where the conditions of the were bond that "should property levying said be when called for offi- cer, void; then this bond to be otherwise of full force and effect.” claim is for the reduced value of the due to deterio- during prin- ration time the was in the hands of the is, cipal, given finally after the bond was and until it was levying principal officer. The is now deceased. proceeded against defendant-security, case who denied a bond, breach of the but claims the was turned over levying expert testimony officer for sale. He submitted as to the value of the auto as the same as when the bond was condition, better, good that it was a if not when turned over to the officer for forced sale. The evidence sub- *3 plaintiff mitted as to the value of the automobile at the sheriff’s sale was its sale This evidence is insufficient to prove general its market value. selling price rule is that article, though of an question, relevant is when alone, standing sufficient to establish its market value. See Wat- (3) (38 Loughran, 82); Banks, son v. 112 837 Ga. SE Lott v. 21 Ga. (4) (94 (4) (38 Harris, App. 322); 246 SE Allen v. 113 Ga. 107 SE 322); (1) (38 Williams, Southern R. v. 744); Co. 113 Ga. 335 SE (136 Collins & Beasley, Glennville R. Co. v. App. 36 Ga. 243 167). Certainly, SE price the sale of the at the forced sale here could hot establish its value so as tó show a reduction in value of the officer. "The Georgia recognize purchasers courts sales to power with the of eminent domain as forced sales and prices exclude evidence of the for such in proceedings. Georgia sales condemnation Power v. Co. (62 Brooks, 183); Parks, 207 Ga. SE2d Garden Inc. v. (76 County, Fulton App. Hwy. 88 Ga. Dept. SE2d State Irvin, 216).” Hwy. Sumner v. State (2) (139 Dept., In Ga. Power Co. v. Brooks, 406, 410, supra, Supreme Court held that cases in condemnation apply to valuations general rule must necessarily free from party is neither "in such transactions party and to the one necessity acquire as to compulsion —the The case part of the other.” give up on the necessity to positive 31), major- in the cited SE admissible on sale is price at a sheriff’s holds the sale ity opinion, more, prove value. it its value. But question of fails sale, involuntary forced judice an only the case sub Not was defendant’s, the actual case, than in the evidence the diminished value prove fails to price. It forced sale given, there forthcoming bond was which the property for deputy sheriff testified deterioration of value. no evidence of clearly cross exami- shown on plaintiff but it was as a witness for of the car knowledge as to value that he had no nation "Q. actually, your estimation He testified: So time of the sale. valued, it actually I mean what car was you know what the don’t No, you? A. ma’m.” actually day of the sale do worth the support it. See Code evidence to judgment, is without verdict and (3) I 39-304; Maxey, 42 Ga. Dickens v. judgment. would reverse the BREMER, INC. v. UNITED BONDING

45407. W. J.

INSURANCE COMPANY. denial of a motion for Judge. a review of the This is Evans, in a suit on a bond summary judgment by plaintiff the' alleges supplied certain materials to plaintiff certain performance of a contract to build housing. allegedly has failed to The contractor low-rent *4 materials, prompt indemnifies the and the bond pay for the furnishing materials persons all payment "of all claims of bond- purpose of the contract.” The defendant under or for the summary judgment and company opposed the motion for ing corporate president the vice the affidavit of introduced knowledge, among personal deposed who on his own amount "Affiant states things, as follows: