22 Ga. App. 740 | Ga. Ct. App. | 1918
Ah execution in favor of K. B. Johnson against Barney Kelsey and B.'Z. Lane-Jr. -fras levied on certain real estate as the property of Lane/”who thereupon filed an affidavit of illegality, in which he alleged that the execution was proceeding
Section 6040 of the Civil Code (1910) is as follows: “When an execution shall he levied on personal property, and an illegality filed thereto as provided by this Code, and the party filing such .illegality desires to take or keep possession of such property, he shall deliver to the sheriff, or other levying officer, a bond payable to the levying officér, with good security, in a sum equal to double the value of the property so levied upon, to be judged of by the levying officer, conditioned for the delivery of the property levied upon at the time and place of sale, in the event that such illegality shall be dismissed by the court or withdrawn, which bond shall be recoverable in any court having cognizance thereof.” It will thus be seen that when an affidavit of illegality is filed, no bond is required, unless the defendant wishes to take or keep possession of the property. Herring v. Saulsbury, 52 Ga. 396; Tarver v. Tarver, 53 Ga. 43; Crayton v. Fox, 100 Ga. 781 (28 S. E. 510). Where a bond is given for the forthcoming of personalty, there is no
As the affidavit of illegality in the instant case alleges that the bond given was a forthcoming bond, and that there was no suit thereon, but that judgment was taken “as is done in cases of replevy bonds,” and that the defendant has not had his day in court, the trial court erred in dismissing the affidavit of illegality. ■
Judgment reversed.