18 Ga. App. 537 | Ga. Ct. App. | 1916
1. Where a claim to personal property under levy is interposed, and the claimant gives a forthcoming bond payable to the levying officer, the obligations arising under the bond arc between the claimant and the officer; and where the property is surrendered to the officer on or before the day of sale and accepted by him in full satisfaction of the bond, the bond becomes functus officio, and the obligors thereon are relieved from all liability thereunder.
(a) The levying officer could decline to accept, before the date of sale, the surrender of the property, for the forthcoming of which bond had previously been executed to him, as, by his aeeeptahee of the property, the expense of its keeping from the date of acceptance to the day of sale would fall upon him; for, as ruled in Houser v. Williams, 84 Ga. 601, and Williams v. Houser, 90 Ga. 21, such expense could not be taxed against the plaintiff in fi. fa.; but where the levying officer, who is the nominal obligee in the bond, accepts the return of the property in full satisfaction of the obligation, he does so at his risk, and such acceptance operates to discharge the obligors from all liability thereon.
3. The original plea filed by the defendants alleged that they delivered to the deputy sheriff of Thomas county one of the mules for which the forthcoming bond was given, and that before the day of sale the other mule was claimed by third persons, who duly filed a claim affidavit with a bond for damages and with a forthcoming bond as required by law, “and that said W. A. Rehberg, as deputy sheriff, as the law requires, delivered said property to said J. E. Webb and company [the parties interposing- a second claim], and that by accepting said claim bond and delivering said property thereunder defendants in the above-stated case, S. M. Webb and S. W. Webb, were thereby relieved of any and all liability under said bond set out in plaintiff’s petition.” This plea sufficiently indicated the surrender to the officer of the property described in the bond, on or before the day of sale, and its acceptance by him, or the retaking of the same by the officer from the original claimants who executed the forthcoming bond sued upon, since it alleges that the deputy himself delivered the property to other persons (the new claimants) and accepted a bond from .them thereafter, and taining possession of the same again, either with or without the con-the sheriff could not deliver the property to another without first ob-sent of the defendants, the makers of the said bond. See, in this connection, Floyd v. Cook, 118 Ga. 526, 527; Allen v. Allen, 119 Ga. 278. The trial court therefore erred in sustaining the demurrer to the second paragraph of the plea of the defendants and in striking the same.
4. The decision in the case of Peacock v. Savannah Woodenware Co., ante, 127 (88 S. E. 906), turns upon the question whether or not the claimant sufficiently carried the burden imposed upon him by reason of certain proof made, and also upon whether or not certain oral testimony was admissible. The decision in the case of Sanchez v. Savannah Woodenware Co., ante, 216 (89 S. E. 80), is in full as follows: “This case is controlled by the rulings in the case of Peacock v. Savannah Woodenware Co., ante, 127 (88 S. E. 906), and it was not error for the court to overrule the motion for a new trial.” While an examination
5. The trial judge erred in overruling the motion for a new trial.
Judgment reversed.