Craig v. Herring & Turner

80 Ga. 709 | Ga. | 1888

Bleckley, Chief Justice.

The code, §3319, declares that after a replevy bond in attachment has been given by the defendant, it shall be lawful for the plaintiff to take judgment against the defendant and his securities upon said bond for the amount of the judgment he may recover in his said attachment case. This was done, and the securities thereupon filed their affidavit of illegality.

1. The first ground of illegality attacks the contract declared upon in the attachment suit, as one upon which no attachment would lie as against the property attached. That question was closed by the judgment, and is not open to re-examination by affidavit of illegality.

2. The second ground alleges that the contract was conditional, and therefore that a verdict was necessary, and the court could not render a judgment without a verdict. The contract was in writing, and so far as appears was wholly unconditional as to the existence and the amount of the debt. The condition disclosed in the record was as to the vesting of title in the debtor to the property for which the note was given, and not as to the obligation of the debtor to pay for it. It was an unconditional debt, with conditional incidents attaching to the consideration. The note, we may assume, the contrary not appearing, was payable certainly and at all events, and the retention of title by the creditor was to secure payment, and not to make the debt contingent. The note fell directly within the constitutional provision empowering the court to render judgment without the verdict of a jury. Code, §5145.

3. The third ground goes back to the bond given by the plaintiff on suing out the attachment, and makes the point that the bond was not executed by the principal and sureties themselves, but by the plaintiffs’ attorney in their behalf. It is enough to say that as the apparent makers of the bond have never raised this question, it is one in which these securities on the replevy bond have no interest.

4. The fourth ground urges that the affiants were not served with process, and did not appear and defend. They had no right to be served with any process. When they became parties to the replevy bond they were parties to the pending case so far as to subject them to the result, the attachment not being void. The case is unlike Neal vs. Gordon, 60 Ga. 112.

5. The fifth and last ground attacks the bond for fraud in the sheriff, by which these securities were induced to sign it, not knowing it to be a replevy bond, but believing it to be merely a bond for the forthcoming of the property which had been seized under the attachment. It is not pretended that the plaintiff in attachment was implicated in or privy to this fraud. If the sheriff deceived and misled these securities, thereby committing a tort upon them, their redress is against him, and they have no right to discharge from the bond as between themselves and the innocent plaintiff in attachment. The correct statutory bond was taken, in which respect this case is unlike Ham vs. Parkerson, 68 Ga. 880, in which the bond was not that appropriate to the duty of the officer, but one wholly different. The present case is more in line with Willis vs. Rivers, decided at this term, {ante, 556.) The court administered the law in sustaining the demurrer to the affidavit of illegality.

Judgment affirmed.