11 S.E.2d 839 | Ga. Ct. App. | 1940
1. An action for damages will not lie against a sheriff and his bondsman, for alleged failure of the sheriff to serve a process or make a levy, in favor of a person not a party to such proceeding calling for an exercise of such duty. A plaintiff in a trover action whose interest in the property is not that of the holder of title, but only that of bailee or a special interest, may bring an action against such sheriff for alleged failure to seize the property or make the bond required in a trover proceeding brought by such holder of the special interest. The real owner, however, has no cause of action against a sheriff for his failure to make a levy in such a case, his rights not being affected by such failure to act.
2. In an action by the holder of such special interest in the property, for damages alleged to have been caused by the failure of the sheriff to make the levy and seizure of the property under a bail-trover proceeding, it is necessary to allege the extent of the interest held, in order to determine the amount of the damages. Damages are given as compensation for the injury done. A failure to make such allegations as to the damage done to the special interest will subject the petition to demurrer.
3. Under the principles above stated the court did not err in sustaining the demurrers to the petition.
The plaintiff, Max Zugar, took a verdict for the property. If he had elected to take a money verdict, the suit would have become an action for damages, and the measure would have been the value of his special interest in the property, he having alleged that he was only a bailee of the property sued for. If in the trover action he had alleged that he was in possession merely as agent for his wife, the petition would have been subject to general demurrer. See Burch v. Pedigo, andMitchell v. Georgia Alabama Railway, supra. The trover petition alleged a special interest as bailee in the plaintiff, and any damages recoverable were restricted to the value of, or damage to, such special interest. In a suit against a sheriff and his bondsman for failure to levy, as in this case, the owner of a special interest in the property can not recover any sum as damages greater than the amount of damage he sustained, which in *663 any event can not be greater than the value of the special interest. By amendment he disclaimed any damage to his special interest, sued for the use of the real owner of the property, and fixed the damages as the value of the entire interest. The real owner of the property, Mrs. Max Zugar, not having been a party to the trover action, is not entitled to recover against the sheriff and his bondsman for the sheriff's failure to act in a suit to which she was not a party and in which her interest or title was not involved.
Under this view of the case it becomes unnecessary to determine whether an officer is liable for a failure to levy on property whose description is insufficient to point it out to him, although a judgment had been obtained in a suit brought, there being no demurrers filed because of lack of description.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.