121 Ga. 831 | Ga. | 1905
(After stating the foregoing facts.) The cotton was under levy. Presumptively it would have been sold and the proceeds turned over to the plaintiff in fi. fa. The sale was prevented by the claimant giving a bond in which he bound himself to return the property in the event it was found subject to the execution on the trial of the claim case. This bond was improperly made payable to Wall, the plaintiff in fi. fa., instead of to Watson, the levying officer, as required by the Civil Code, § 4615.. It
Even if the contention of plaintiff is correct, this was not a suit upon a forthcoming bond, and there was no presumption that it was given for exactly twice the value of the property levied on, and nothing to indicate that the recovery could be limited to $50. Besides, the right to appeal is fixed by the pleadings. This being an action on a bond in the penal sum of a hundred dollars, the court properly refused to dismiss the appeal on the ground “ that the original summons and cause of action did not show that the amount involved exceeded $50.” But, for the reasons stated on the other branch of the case, there should be a new trial.
Judgment reversed.