Thurman v. Avera , 20 Ga. App. 802 ( 1917 )

George, J.

The defendant in a bail-trover action was discharged by order of the judge, because of his inability to produce the property or give the bond required by statute. The plaintiff obtained’ a supersedeas of that judgment, for the purpose of reviewing the judgment. The court ordered the release of the defendant, pending the appeal, on condition that he execute in effect an eventual-c'ondemnation-money bond. The sheriff allowed the defendant to go, on the giving of a bond for his personal appearance to abide the judgment in the cause. The judgment discharging the defendant was affirmed by the Court of Appeals. Thurman v. Smith, 16 Ga. App. 523 (85 S. E. 799). Thereafter and after verdict and judgment in favor of the plaintiff and against the defendant the plaintiff filed suit against the sheriff, for damages occasioned by “the breach of an official duty of the sheriff and his deputy;” to which the deputy sheriff and the defendant in the trover action, and the sureties upon the bond for the defendant’s personal appearance were made parties. Held: The petition did not set forth a cause of action, and the demurrer of the sheriff, on this ground, was properly sustained. There was also a misjoinder of parties defendant. If the sheriff had taken the bond required of the defendant by the order of the court, the liability upon that bond would have been at an end on the affirmance by this court of the judgment discharging the defendant. This being true, the failure of the sheriff to take such bond did not result in loss to the plaintiff.

Judgment affirmed.

Wade, G. •/., and Luke, J., concur.