84 Ga. 601 | Ga. | 1890
It appears from the record in this case that in 1884, Houser foreclosed a mortgage against J. J. Williams on certain mules, horses and cattle. A mortgage^, fa. was issued and levied by Pope, the sheriff, upon the cattle and two horses. To this levy Annie E. Williams, the wife of J. J. Williams, interposed her claim to the property, and gave a forthcoming bond with John and M.E. Taylor as sureties upon the same. At the trial term of the claim, it was withdrawn; but the claimant after-wards renewed her claim, and on the trial of this second claim, the property was found not subject. On this verdict a judgment was entered up against Houser, the plaintiff in fi. fa., for $486.40, costs and interest thereon from the 2d of March, 1886. The itemized bill of costs is as -follows : “Piling and docketing claim, $3.00 ; issuing subpcenas, 30 cents; two advertisements, $6.00 ; levy, $2.00 ; taking bond, $1.00 ; feed of thirteen head of cattle for 193 days, at 15 cents per day each, $376.35 ; feed of one horse for 193 days, 50 cents per day, $96.50; attendance on jury, $1.25,” — making $486.40. This_/i. fa. was levied on the property of Houser, and he interposed an affidavit of illegality on various grounds, which will be seen by reference to the official report. On the trial of the issue of illegality, the jury found against the same and in favor of the fi. fa. Houser
The main grounds relied on here for a reversal of the judgment of the court below in not granting a new trial, are the 7th, 8th, 9th, 10th and 11th. The substance of these grounds is, that the court charged that the forthcoming bond given by Mrs. Williams required her to have the property forthcoming on the day of sale, and if she appeared in court and dismissed her claim, that disposed of that claim case and everything connected with it; that there was then no such case in court, and that the claim bond ceased to be in force, and also the forthcoming bond ceased to be in force at that time, upon the cessation of that case; that the securities upon the forthcoming bond were not bound except so far as that particular ease was concerned, and therefore the bond ceased to be such a forthcoming bond as the law requires, except as to that claim; that it was the duty of the sheriff, upon the dismissal of the claim, to take possession of the property and have it forthcoming, or at least to advertise and have it present on the day of sale ; and if he did take possession of this property after the first claim was dismissed, then, having the property in his possession, he would have the right to control it as sheriff, aud it could only be taken out of his possession legally, and he was entitled to charge the legal fees for keeping the property after taking possession of it from the claimant.
The main question in this case is as to the extent and effect of a forthcoming bond given by a claimant and accepted by the sheriff. Under the law of this State, when a sheriff levies an execution upon personal property, and it is claimed by a third person, that person has a right to give to the sheriff a forthcoming bond. That bond is for the delivery of the property at the