4 Ga. App. 4 | Ga. Ct. App. | 1908
This ease is a veritable example of “confusion, worse confounded;” but most of its intricacy arises from the at
A distress warrant is final process until arrested by counter-affidavit and replevy bond. If the levying officer releases the property without taking the affidavit and bond he does so at peril of being held liable by the plaintiff for the amount of the rent or the value of the property. No issue arises between the plaintiff and the defendant until the distress proceedings are arrested in the manner prescribed by the statute. No liability attaches to the bond until that issue is disposed of adversely to the defendant; the liability is solely dependent upon the result of that issue, and not upon the distress warrant, which is rendered functus by the creation of that issue. Willis v. Bivins, 76 Ga. 745; Griggs v. Willbanks, 96 Ga. 744 (22 S. E. 327), and cases cited.' If the plaintiff recovers in the suit thus arising, judgment is entered at one and the same time against both main defendant and the surety on the replevy bond; and no separate suit on the bond is necessary. McNeil v. Harker, 40 Ga. 26. Indeed, since the surety for the eventual condemnation-money is so far a party to the original action that judgment may go immediately against him, or, if his name is omitted from the original judgment, it may be inserted therein by an entry nunc pro tunc (cf. Stewart v. Hall, 106 Ga. 172 (32 S. E. 14), and cit.; Scott v. Bedell, 108 Ga. 205, 210 (33 S. E. 903)), it would seem to follow that no separate suit on the bond is permissible; for to such a suit a plea of former judgment, if judgment had been rendered, or the pendency of a prior action, if judgment had not been entered, would lie. Except in those instances where the case has reached an indecisive end and may therefore be renewed, a defendant is not to be harassed by more than one suit on the same cause of action. In the case at bar, however,'the action of the magistrate in dismissing the suit on the bond was in any event the only proper judgment, and the judge of the superior court erred in sustaining the certiorari and in remanding the case for further trial. Under this proceeding neither this court nor the superior court, nor the justice’s court in which the case originated, has any jurisdiction to right any wrongs or irregularities that may have come about in the proceeding begun by the distress warrant. Judgment reversed.