85 Ga. App. 808 | Ga. Ct. App. | 1952
Lead Opinion
1. It is contended that the court erred in overruling the motion to dismiss the claim on the ground of alleged insufficiency of the bond. The claimant is required to give bond “in a sum not larger than double the amount of the execution levied,” except that, where the property levied on is of less value than the execution, the amount of the bond “shall be double the value of the property levied upon.” Code, § 39-802. It appears from the record that a deputy sheriff levied an execution in the amount of $80.60 in favor of Henry Gordon v. Jim Grier on the automobile in question. P. B. OMalley testified that the vehicle was worth $105 on the day the levy was made.
Construing Code §§ 39-802 and 39-907-—-the former providing for the amount of the bond in a claim case, and the latter relating to the basis upon which recovery may be had in the event it appears that the claim was filed for the purpose of delay only— it is shown that it was the intention of the legislature to require that the bond be in an amount double the sums due on the execution at the time of the levy thereof, provided that these sums are less than the value of the property levied on and for which the claim is interposed; and, in the event that the value of the property is less than the total of such sums due on the execution, the bond must be in an amount double the value of the property as appraised by the levying officer. Since the bond here was in an amount double only the amount of the execution, principal, interest, and cost up to the date of the execution, exclusive of accrued interest since the date of the execution, it is not in strict conformity with the requirements of the statute. However, this defect does not render the claim void or invalid. The bond is amendable. Code, § 81-1204; Veal v. Perkerson, 47 Ga. 92; Lee v. Mills, 69 Ga. 740; Sabin-Robbins Paper Co. v. Wilson, 70 Ga. App. 42 (27 S. E. 2d, 254). The defect, therefore, does not
2. The only objection in the motion for new trial insisted upon is that the court erred in giving the following charge: “I charge you that, where personalty sold on credit and contemporaneously the purchaser gives to the seller a mortgage on the property to secure the indebtedness so created, the lien of the purchase-money mortgage is superior to all common-law judgments rendered against the mortgagor prior to the purchase and the.giving of the purchase-money mortgage.” The effect of the acceptance by Commercial Auto Loan Corporation of a bill of sale to secure debt from Jim Grier and his wife, as arranged by P. B. O’Malley, the original purchaser, was to refinance the transaction as if the sale had been made to him at the outset and a balance remained unpaid, although it is not shown by the record that P. B. O’Malley was at the same time relieved from liability. While the bill of sale was executed by James W. Grier and his wife, the record shows that P. B. O’Malley transferred his interest to “James W. Grier, heirs, executors, administrators and assigns”; and Grier testified that he bought the car and paid a part of the purchase price and the balance was unpaid and that his wife, Henrietta Grier, had no interest in it and it was his debt. His wife testified that he bought the car and that she had no interest in it.
“Where a party who is , entitled to the benefit of the rule prohibiting the admission of parol evidence to vary or contradict a writing waives the benefit thereof by allowing such evidence to be received without objection and without any effort to have it stricken and disregarded by the trial judge or the jury, he can not, after the trial has terminated and the case has been decided
There was ample evidence from which the jury was authorized to find that title to the automobile was in Commercial Auto Loan Corporation, claimant.
The court did not err in overruling the certiorari.
There being a dissent in the division to which this case was originally assigned, it was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).
Judgment affirmed.
Dissenting Opinion
dissenting. The promissory note involved in this case is not a simple note agreeing to pay the sum due and waivers of homestead, etc. It is a long agreement, written in fine print, single-spaced, containing approximately 3000 words, which we do not propose to set forth. It contains all manner of agreements. The second paragraph of this note is as follows: “This
I am authorized to state that Townsend, J., concurs in this dissent.