77 Ga. 21 | Ga. | 1886
In Goodyere vs. Ince, Cro. Jac., 246, the law was thus laid down by the entire court; the question being, where a judgment was reversed, whether the defendant therein should be restored to the lease itself which had been disposed of on an extent, or to the value for which the sheriff delivered it in execution, viz., one hundred pounds, “for it was alleged that the sale was good, and that afterward it had come into two or three hands.” But it was held that the sale should not bind him, “for there is a difference between this salé and delivery upon an elegit to the party himself, and a sale to a stranger upon & fieri facias, for the fieri facias gives authority to the sheriff to sell and to bring the money into court; wherefore, when he sells a term to a stranger, although the execution be reversed, yet he shall not by virtue thereof be restored to the term, but to the monies, because he comes duly thereto by act in law. But the sale and delivery of the lease to the party himself upon an elegit, is no sale by force of the writ delivered in extent, which, being reversed, the party shall be restored to the ermt itself.” This distinction is recognized by numerous earlier and later authorities. Bacon’s Ab. Tit. Execution
(Q), and cases there cited.
It is true that we have allowed an action upon the bond under the circumstances presented here, for we hold that this amounts to a breach of - its condition; but such action is merely cumulative, and does not deprive the party of the remedy given by the statute, or that which previously existed at common law. In Norwell vs. Freeman, 25 Ga., 359, this dismissal of his action by the plaintiff after he had replevied the property was held to be a judgment o*f restitution, and JBenning, J.,who delivered the opinion of the majority of the court, distinctly laid down the principle that the party dismissing the suit rendered himself liable to have either a judgment of restitution entered against him, or a writ of restitution issued without entering the judgment; and in the case of Glover et al. vs. Gore, determined at February term, 1885 (14 Ga., 680), we followed this decision. We there show that, had the defendant in the original suit replevied the property, and had a verdict been returned against him, both he and his surety would have been liable to a judgment on their bond. He could have had either one of these findings in his favor, viz., that the property be restored with compensation for its use, or that he recover the property, and upon the defendT ant’s failure to deliver it, that he recover a certain sum of money; or he might have had a money verdict only (Code, §§3028, 3563,3564). But if the defendant fails to replevy the property when taken and seized by the sheriff, that officer, is required to deliver it to the plaintiff, or his attorney or agent, upon his “ entering into like recognizance with security.” Code, §3420. This carries with
The plaintiff had a right to dismiss his suit either in term time or in vacation, and the omission to place this on the minutes of the court by the misprision or oversight of the clerk, might be supplied at any subsequent term by a nunc pro tuno order. So that in these two cases, we order the judgments complained of affirmed by the dismissal of the same.
Judgment affirmed.