Wilson v. Swords , 22 Ga. App. 233 ( 1918 )

Wade, C. J.

Wilson brought bail-trover against Swords for two automobile tires. Swords surrendered the tires to the officer, who took charge bf and retained them and was in possession thereof at the time the case came to trial. -After the plaintiff had introduced evidence and rested his. case, a motion for nonsuit was made; and thereupon the suit was voluntarily dismissed by the plaintiff, and the court, on motion of the defendant, then directed a verdict in his favor and against the plaintiff for the sum of $30, the proved value of the property as shown in the petition and by the evidence for the plaintiff.

“Where, in such a proceeding, the plaintiff has given no replevy bond, and the defendant has delivered property into the hands of the sheriff, and has been thus deprived of its use and possession until the trial of the trover suit, and the plaintiff fails in his suit or voluntarily dismisses it, the defendant is not driven to the necessity of suing the plaintiff, to recover the damages which may have accrued to him from having been deprived of the use and possession of his property at the instance of the plaintiff, but is entitled in that proceeding to have either a writ of restitution for the property and its hire, or a fieri facias, if he so elects, for its value.” Underwood Typewriter Co. v. Veal, 12 Ga. App. 11 (76 S. E. 645). Under the ruling in the case just cited, the trial judge did not err in directing the verdict; nor did the judge of the superior court err in overruling the certiorari.

\ Judgment affirmed.

Jenkins and Luke, JJ., concur.