130 Ga. 591 | Ga. | 1908
In suits to recover personal property, the plaintiff may elect, at his option, one of three verdicts: (1) an alternative verdict for the property or its value, (2) a verdict for damages alone, or (3)-a verdict for the property alone, and its hire* if any. This election may be made upon the trial of the ease; and it is the duty of the court to instruct the jury, in the event they find for the plaintiff, to render the verdict which he has elected. Civil Code, §5335. The main question involved in the present ease is whether this right of election in the plaintiff to take a particular verdict is absolute, or whether, under the circumstances appearing in the statement'of facts, this right was lost by the conduct of these plaintiffs. Any person about to commence an action for the recovery of personal property may require bail, upon making an affidavit that the property is in the possession, custody,, or control of the defendant, and that he has reason to apprehend that the property has been or will be eloigned or moved away; or will not be forthcoming to answer the judgment, execution, or decree that shall be made in the case. When this affidavit is filed,, it is made the duty of the officer serving the petition to take from the defendant a recognizance, payable to the plaintiff, in double the amount of the sworn value of the property and the hire, for the forthcoming of the property to answer such judgment as may be rendered in the case; and the security shall be bound for the-payment of the eventual condemnation money, for which judgment may be signed up against the defendant and his security, and execution had thereon without further proceeding. If the defendant refuses or fails to give such security, the property shall be seized by the executing officer and delivered over to the plaintiff,, upon his entering into like recognizance with security. Civil Code* §§4604-6. It was held in Hudson v. Goff, 77 Ga. 281 (3 S. E. 152), that the plaintiff’s right under the code to elect, upon the trial, whether he will accept the alternative verdict for the property or its value, or a verdict for damages alone, or'for the property alone with hire, is not lost by suing out -bail process and.
In according to the plaintiff the right to give the same recognizance which he may demand of-the defendant, and thereby obtain possession of the property which is the subject-matter of the suit, the law intends an impartial reciprocity of protection. Where the plaintiff gives bond and takes the- property, and is cast in the suit, the defendant is entitled to recover of the plaintiff the property in his possession, and the defendant, like his opponent, is entitled to make an election of verdicts. Marshall v. Livingston, 77 Ga. 26 (3). If the plaintiff voluntarily abandons or dismisses his case, ot is nonsuited, the defendant may move for a judgment of restitution of the property, or if he elects to take a judgment for its value, he may enter up judgment on the bond for its value. Marshall v. Livingston, supra ; Lauchheimer v. Jacobs, 126 Ga. 261 (55 S. E. 55), and cit. When a verdict for damages shall be rendered in favor of the plaintiff in a trover suit, and a judgment is signed thereon, the verdict and judgment do not have the effect to change the property which is the subject-matter of the suit, or to vest the same in the defendant in the suit, until all damages and costs recovered by the plaintiff are discharged, except so far as to subject the property to be sold under and by virtue of an execution issued upon the judgment, and to make the same liable for the damages and costs recovered in the trover suit, in preference to any other judgment against the defendant. Civil Code, §5358. The proposition that the verdict in a trover suit shall not have the effect to vest the property in the defendant until the judgment for damages has been discharged by him, carries with it the correlative proposition that if the defendant discharges the judgment for damages, then, so far as the plaintiff is concerned, his title to the property becomes absolute. Hence, as the defendant has the same right of election of verdicts which the
The various assignments of 'error, except the one referred to in the next division of this opinion, relate to the ruling, that, under the admitted facts, the plaintiffs had lost their right to elect a
Judgment affirmed.