79 Ga. 611 | Ga. | 1888
This is a safe case. King was a constable. The action was upon his official bond. It involved his liability for the safe-keeping of a safe. We think him safe against the liability. The property was the subject-matter of a garnishment returnable to a justice’s court, issued at the instance of Rollins, upon a judgment against Jones, one Tilley being the garnishee. Tilley by his answer admitted his possession as bailee, also the owernership of Jones, and thereupon surrendered the property; and the court ordered it to be sold, as pointed out in the code, §§3305, 3549. Jones filed an affidavit of illegality, to the effect that thefi.fa., garnishment and order of sale were proceed
The next step taken was to bring the present action on King’s bond; the official misfeasance alleged in the declaration being, that he turned the property over to Jones, failed to retain possession of it, failed and refused to repossess himself of it as directed by the plaintiff’s attorney, and failed to sell it in pursuance of the order of the court.
Without disc issing or even stating the grounds of the motion for a new trial, it is clear that the plaintiff could not recover, for the reason, were there no other, that independently of the ex parte order of the justice’s court to deliver the safe to 'Jones, he had a right to its possession as a legal incident to the verdict rendered in his favor, and the judgment entered thereon sustaining the illegality and dismissing the levy. The purpose of the affidavit of illegality, as finally shaped by amendment, was to protect the property from sale as property exempt from levy and sale by the constitution and laws of this State. Frost vs. Borders, 59 Ga. 817. And the purpose of the verdict and the judgment thereon was to give effect to the asserted exemption. They virtually loosed the hold of the law upon the property, and released it from seizure. No further order was needed. Jones was entitled to have possession immediately. The intention of the plaintiff’s counsel to apply for a certiorari was no supersedeas of the judgment, even had his intention been disclosed before the safe was turned over; but it was not declared till after-wards. Possibly, had he applied to the justice’s court for an order to detain the property until he could sue out a certiorari, it could have been granted. Lindsey vs. Lindsey, 14 Ga. 657; Holcombe vs. Roberts, 19 Ga. 588 ; Crawford vs. Ross, 39 Ga. 44. But in the absence of such an order, the supersedeas could come into existence only with the sanction of the petition for certiorari, and would operate then only to stay further proceedings, not undoing anything that had been done. Board of Commissioners vs. Wimberly, 55 Ga. 570, and cases cited. When King was instructed by counsel to retake the property, Jones had a lawful and rightful possession of the same, and it was not King’s duty, nor even in his power, to disturb that possession.
Judgment affirmed.