140 Ga. 498 | Ga. | 1913
A fi. fa. in favor of the Southern Pacific Guano Company 'against E. C. English was levied upon certain cotton, to which the Eeynolds Banking Company interposed a claim. The property levied upon was delivered to the claimant by the sheriff, upon the execution of a forthcoming bond. The proceedings were returned to the superior court for trial, and the claim was dismissed because of a defect in the affidavit. Thereafter the sheriff, suing for the use of the plaintiff in fi. fa., instituted suit upon the forthcoming bond, alleging, amongst other things, that, after the judgment dismissing the claim and ordering the fi. fa. to proceed, he demanded of the claimant the possession of the property so levied upon, which demand was refused; and that prior to the institution of the suit the claimant had appropriated the cotton levied upon, and thus put it out of the claimant’s power to. deliver it to the sheriff. The claimant filed an answer and a plea in abatement at the appearance term, and at the same time prepared another claim, together with a forthcoming bond, and tendered .the same to the sheriff, who refused to receive them. Subsequently the Eeynolds Banking Company filed a petition to enjoin the prosecution of the suit, on the ground!?, that there was no such person, firm, or corporation as the Southern Pacific Guano Company, the alleged plaintiff in the judgment upon which the execution issued; that the Southern Pacific Guano Company was a trade-name used during the year 1897 and prior thereto by J. T. Moody and G. S. Brewster of the county of Pulton; that Moody'and Brewster and all of their assets were placed in the hands of a receiver and trustee in bankruptcy, and all of their assets were taken possession of and administered under that litigation; that the receiver had been discharged; that Moody is dead; that Brewster has moved to Indianapolis, Indiana; that the fi. fa. was based on a note which ■ had never been transferred; that there is now no authority in any one to proceed with the collection of the fi. fa., or to authorize the suit upon the bond; that the issue made by the claim case was not tried upon its merits; and that the refusal of the sheriff to accept a secón*1, claim deprives the claimant of the right to establish its
1. The remedy by claim is cumulative. It is an expeditious method provided by statute for determining the right of the plainr tiff to have satisfaction from the property levied upon, the ownership of which is claimed by a stranger to the fi. fa. In claim cases, where there is a legal affidavit of claim and also a legal claim bond, a forthcoming bond is not necessary to the hearing of the claim. The forthcoming bond is a privilege to the claimant, but not a requisite with which he must comply. Without it the property, pending the litigation, remains in the possession of the sheriff; by it he has a right to the possession of the property until the sale. Bonner v. Little, 29 Ga. 538. When a claimant gives a forthcoming bond, thereafter he acknowledges that he holds the property for the sheriff, and his failure to deliver the property to the sheriff at the time and place of sale is a breach of the bond. Bo elude v. Thornton, 19 Ga. 151. If the claimant still retains the property in Ms possession, the sheriff, after a dismissal or withdrawal of the claim, must readvertise the property. But if, after taking possession of .the property, the claimant disposes of it, the sheriff is not required to readvertise the property, but may sue upon the bond as for a condition broken. Aycok v. Austin, 87 Ga. 566 (13 S. E. 582). The claimant, after disposing of the property, is not entitled to file a second claim thereto, upon the original claim being withdrawn or dismissed (Oatts v. Wilkins, 110 Ga. 319, 35 S. E. 345), and in a suit upon the forthcoming bond it is no defense that, because the property was not readvertised for sale, he had no opportunity of renewing his claim. As was very pertinently said by Bleckley, C. J., in Anderson v. Banks, 92 Ga. 121, 122 (18 S. E. 364): “If it be said that he had no opportunity of renewing because the property was not readvertised for sale, the answer is that it did not have to be readvertised, for it was disposed of either by the claimant or his surety, so that they could not produce it. Advertising it would be a useless ceremony and needlessly expensive if the proposed sale would be impossible in consequence of the prop
Judgment affirmed.