4 Ga. App. 13 | Ga. Ct. App. | 1908
. There is no merit in the point that the suit should have been dismissed because the execution under which the property was advertised the second time was proceeding illegally, in that the execution had been changed by striking therefrom the amount of $180, attorney’s fees. It is admitted in the agreed statement of facts that these attorney’s fees were written off voluntarily by the defendant, as required by'the judgment of the Supreme Court. After the judgment of the Supreme Court had been made the judgment of the lower court and the judgment for attorney’s fees written off, the claimant, in judieio, withdrew his claim and consented that the fi. fa. based upon the said judgment should proceed. It therefore matters not who struck the attorney’s fees from the
When property is taken and held under process, mesne or final, of a court of competent jurisdiction, it is in the custody of the law and within the exclusive jurisdiction of the court from which the process has issued, and the possession of the officer can not be disturbed by process from any other court. Corvell v. Heyman, 111 U. S. 176 (28 L. ed. 390, 4 Sup. Ct. 355); Fulghum v. Wiliams Co., 114 Ga. 647 (40 S. E. 695, 1 L. R. A. (N. S.) 1055, 88 Am. St. R. 48). We think the principle here announced applies to property seized under process and released by virtue of a statutory forthcoming bond. Eyster v. Gaff, 91 U. S. 521 (23 L. ed. 409); Carling v. Seymour, 113 Fed. 483 (51 C. C. A. 1). Of course, the discharge in bankruptcy of Clements, the principal in the forthcoming bond, in no wise affected the rights of the plaintiff, or released the surety from the obligation of his bond. Wolf v. Stix, 99 U. S. 1 (25 L. ed. 309); Phillips v. Solomon, 42 Ga. 192; Kaminsky v. Horrigan, supra. It is admitted by the learned counsel for plaintiff in error that the adjudication in bankruptcy, being more than four months after the rendition of the judgment, can not be set up as a matter of defense by the surety. But he insists that he is not setting up this adjudication as a defense, but claiming that before the time arrived for compliance with the obligation of the bond, the property described in the bond had been taken from the possession of the principal by the law, under and by virtue of a lien which was superior in dignity to the lien of the State process, under which the property was first seized. Pie bases this contention on the following facts: It was admitted
In our judgment, Hobbs & Livingston acted wisely in not going into the bankruptcy court, or in any way subjecting their rights to its adjudication. They were amply protected, under the facts of this case, by the forthcoming bond; and such rights can not be affected by the conduct of the claimant subsequent to the execution of the forthcoming bond, or the conduct of the defendant in execution in allowing liens to accumulate upon the property delivered into its possession b) the claimant and covered by the forthcoming bond, nor by the unauthorized seizure by the bankruptcy court of the personal property which had been seized under valid process from the State court, and which had been released by the levying officer under the terms of the bond which the law accepted as a statutory substitute for its possession, the terms of which bond required that when it was called for by the State-court process, under which it had been seized, it should be produced.
The judgment in favor of the plaintiff, we think, was demanded by the evidence and the law applicable thereto.
Judgment affirmed.