56 Ga. App. 524 | Ga. Ct. App. | 1937
The plaintiff brought a bail-trover proceeding in Putnam county court, to recover a certain described hog. The sheriff served the defendant with a copy of this proceeding, but failed to take a bond for the property or turn it over to the plain
A bail proceeding is not an essential part of a trover case, but is ancillary to such an action. When a person is about to commence an action for recovery of personal property, and requires bail, such person, his agent, or attorney shall make the affidavit as prescribed by the Code, § 107-201, and when so made it shall be filed in the office of the clerk of the court to which the petition may be made returnable, and a copy thereof affixed to the original petition. It shall be the duty of the sheriff or other officer serving such petition to take a bond with security, payable to the plaintiff, for the forthcoming of the property, and such security shall bo bound for the payment of the eventual condemnation-money, for which judgment may be signed up against the defendant. § 107-202. The purpose of bail process is to require security for the forthcoming of the property or-to authorize the seizure of the property, or, if the property can not be found, to arrest the defendant.
The main issue for determination in a trover case is one of title. The defendant has the right to set up any legal defense which would defeat the plaintiff’s right to recover; and title in himself and right of possession, as pleaded in this case, is proper
The judge of the superior court properly sustained the certiorari and reversed the judgment of the trial court.
Judgment affirmed.