10 Ga. App. 480 | Ga. Ct. App. | 1912
Grace, as county court bailiff of Pulaski county, levied on an engine, boiler, and other fixtures of a sawmill, under an execution issued from the county court in favor of Mitchell and against the firm of Brown & Smith. Pinleyson filed a claim. The claim having been withdrawn, the bailiff advertised the property for sale, the advertisement reciting that the property would be sold
1. To our minds, there is error in the court’s judgment, but not against the excepting party. We think that the judgment rendered in the city court was the correct determination of the case. In or
2. In our judgment, the judge of the superior court was in error in holding, under the particular facts of this case, that there was a total breach of the bond because the claimant made no actual tender of the property, though the bailiff did not agree to waive tender and did not repossess himself of the property. It must, be remembered that the bailiff’s seizure of the property was constructive only. He did not take it and carry it away from where it was situated. When the claimant gave bond he did not move it. If he had moved it, all that would have been necessary on his part would have been for him to bring it and put it where the bailiff said for him to put it, according to the advertisement of the sale. The bailiff’s advertisement was public notice to him, as well as to the world, that while the actual selling or crying off of the property would take place at the court-house, the property would not be brought there, but was to remain and to be delivered to the purchaser at the mill site’ where it was situated. When the day and hour of sale arrived, the claimant had the property at the very place at which he ought to have had it. Just what more he could have done we do not sec. Counsel for the plaintiff in error say that he should have tendered it to the bailiff at that hour. Does he mean that he should have pu t this heavy machinery upon vehicles and have brought it to where
As the defendants in the forthcoming bond have filed no exceptions to the granting of a new trial, we shall not reverse the judgment on that ground, but we refuse to reverse it on the exceptions filed by the plaintiff in the bond.
Judgment affirmed.