16 Ga. App. 523 | Ga. Ct. App. | 1915
Thurman sued out bail-trover against Smith, to recover a diamond ring to which he held title under a bill of sale to secure the payment of $210. Smith was .taken into custody by the sheriff upon his failure to surrender the property sued for or to give bond for the eventual condemnation-money, and thereupon
It appears from the record, that the petition for discharge was filed by the defendant on March 24, 1914, and that on April 15, 1914, the court passed the following order: “Upon satisfactory evidence being adduced that the movant in the foregoing petition can not produce the goods mentioned therein, nor give the bond and security as required by law, and satisfactory reasons for the non-production of said goods being shown to the court, it is hereby ordered and adjudged that the movant, J. C. Smith, be and he is hereby discharged from custody;” that the order above mentioned which recites the giving of a bond for $300 by the plaintiff to
The case came on regularly at the August term, 1914, of the city court of Nashville, and the defendant failed to appear personally, as required in his bond, but by his attorney made an appearance and filed a plea of general issue in the case. The case proceeded and the plaintiff tendered in evidence, without objection, an instrument executed by the defendant to the plaintiff, which was dated November 15, 1910, and which.recited that "to secure two promissory notes of even date herewith, maturing respectively December 15 and January 1 after date, for $100 and $110 each, I hereby sell, transfer, and convey one diamond ring of the value of $425, being 2%-s'z, ’and being the property of said J. C. Smith, to L. P. Thurman. In the event said notes are not paid at maturity, the said L. P. Thurman shall have the right, and he is hereby authorized, to seize said property and appropriate the same to his own use;” signed by J. C. Smith.
There was testimony that prior to the filing of the suit the plaintiff made personal demand on the defendant for the return of the diamond’ ring, and the defendant then stated that he could not
Section 5154 of the Civil Code provides that where a defendant in any action for the recovery of personal property in which bail is required shall be held in imprisonment by reason of his inability to give security, he may present his verified petition in writing to the judge of the court in which the suit is pending, in which he shall state that he is neither able to give the security required by law nor to produce the property, and can furnish satisfactory reasons for its non-production, and traverse the facts stated in the plaintiffs affidavit for bail; and at the hearing, after the notice provided by law, if the judge shall find from the evidence presented that the petitioner can neither give the security nor produce the property, and the reasons for its non-production are satisfactory, the petitioner shall be discharged upon his .own recognizance, con.ditioned for his appearance to answer the suit, but otherwise the judge shall commit him to custody. The record in this case discloses that a petition was filed in accordance with the provisions-of this section, and at the hearing the defendant was discharged from custody, but upon what evidence the judge based his order of discharge does not appear; and hence we must assume that there was
Section 5155 of the Civil Code provides that in any case where a defendant in an action of trover and bail shall present a petition for discharge from imprisonment under the provisions of section 5154, supra, it shall be lawful for either party dissatisfied with the decision rendered to except thereto by writ of error at any time within twenty days from the rendition of the decision complained of. In Marks v. Hertz, 65 Ga. 119, the Supreme Court said, that where a defendant in trover was arrested under bail process and moved for 'a discharge, an order discharging him on his own recognizance was not such a final judgment as could be brought up by writ of error, but the proper remedy was by exceptions pendente lite; and that, if the ruling would work serious or irreparable injury before the termination of the ease, to the party against whom it was made, the court,, on a bill of exceptions pendente lite, should grant a supersedeas until the final disposition of the main case.
The Supreme Court said, in Gustoso Cigar Manufacturing Co. v. Ray, 117 Ga. 565 (48 S. E. 984), that “where a defendant in bail-trover proceedings has been discharged under the Civil Code, § 4608 [Civil Code 1910, § 5154], the order of discharge can only be superseded by the plaintiff giving bond and complying with such other conditions as may be properly imposed.” In that case the Supreme Court said that when the lower court “found that the defendant was ontitled to his discharge, that judgment was conclusive until reversed, and should have been enforced unless superseded;” and further it was said that if the plaintiff “had immediately given notice of its intention to present, á bill of exceptions and asked for time to supersede the order, the court would have allowed time in which to file the same, . . and the question would then have been raised as to what should be the terms and conditions of a supersedeas in bail-trover.” It appears from the record in that case that, the trial judge having ordered that the defendant be discharged from custody upon his own recognizance, and the plaintiff having applied for a supersedeas order until that judgment could be reviewed by the Supreme Court, it was ordered
It will be noted that in the case of Gustoso Cigar Co. v. Bay, supra, the Supreme Court does not in terms decide how far the judge hearing an application for discharge in a bail-trover ease may exercise his judgment in determining the nature of the bond to be required of the defendant for the protection of the interest of the plaintiff, where the defendant is discharged from custody on the ground that he can neither give the bond required by law nor produce the property. In the case under consideration the order of the judge required the defendant to give bond in the sum of $200, conditioned for his appearance at the May term, 1914, of the court in which the proceeding was pending, and to appear from term to term and day to day to answer the final judgment, order, and decree of the court, and in default thereof that he should be remanded to the common jail of the county and there kept until further order of the court; whereas the bond given, though it requires the appearan.ce of the defendant in the proper court at the proper term and from day to day and from term to term, does not require him to answer the “final judgment, order, and decree of the court,” but to answer to “the offense of mis-”; and while requiring that he shall not depart thence without leave of the court, it nowhere binds him to answer to the final judgment, order, and decree of the court in the pending case. It appears that the order or judg
In view of the present provision of the statute authorizing the discharge of a defendant in bail-trover from the custody of the .officer where he fails to produce the property and is unable to give the bond required by law, and presents to the court satisfactory reasons for the non-production of the property, the judge would have been without authority to render the judgment which he declined to sign, requiring the sheriff to arrest the defendant and confine him in close and safe custody in the common jail upon his-failure or refusal to pay the judgment rendered on the trial of the main case, or to return the property described in the plaintiff’s -petition, and to continue to hold the defendant until further order of the. court. The court had already passed upon the question ■whether the defendant should be properly discharged under the showing made at the-hearing of his petition; and, while exceptions . pendente lite were filed by the plaintiff, and all the rights of the plaintiff were thereby preserved, and the propriety and legality of the order of discharge could be' reviewed in this court by bill of exceptions on the final determination of the ease; unless it appeared . that the lower court was not authorized to discharge the defendant under the evidence adduced at the hearing of his application for discharge, this court would not be authorized.to set aside the order of. the judge;-nor would the trial judge himself, thereafter, and while his .original order discharging. the defendant was still of , forcé and not set aside, be authorized to enter up, a further. judg.ment exactly contrary to and altogether nullifying the judgment previously rendered by Mm on the application for discharge. The - judge therefore did not err in declining to direct the sheriff to seize the defendant and incarcerate him upon his failure or refusal to pay the judgment or return the property described in the plaintiff’s declaration, .until the further order of the court.
Imprisonment for debt has long since been generally abolished, and no further discussion of the proposition here involved is neces
Judgment affirmed.