Dawson v. Planters Bank , 31 Ga. App. 530 ( 1924 )

Bloodworth, J.

(After stating the foregoing facts.) Under section 6041 of the Civil Code of 1910, any defendant in execution whose personal property has been levied upon “'by virtue of any fi. fa. or other legal process from any court,” whether he intends to contest the validity of the fi. fa. or process or the amount due thereon, has the right to give bond, acceptable to the levying officer, for the delivery of the property on the day of sale or at any other time agreed to by the levying officer. The purpose of such a bond is to enable the defendant to retain the possession of the property. It does not affect the rights of the plaintiff, “but shall relate to and have effect alone between the officer to whom it is given and the defendant in execution.” Civil Code (1910), § 6042. The statute (§ 6040) provides that it shall be made payable to the levying officer. The bond given in this case was unquestionably a forthcoming bond given under section 6041 of the Civil Code. It was on a printed form marked “forthcoming bond,” was in the usual and regular form of a forthcoming bond, was payable to the sheriff, was conditioned that the defendant in fi. fa. should have the property levied on at the time and place of sale, was given on the same day that the sheriff made the levy, and ten days before the affidavit of illegality was made and thirty days before it was filed. A bond such as is required in cases of affidavits of illegality to mortgage fi. fas. has a form and object different from the above.

Section 3300 of the Civil Code of 1910 provides that when an execution shall issue upon the foreclosure of a mortgage on personal property, the mortgagor may file an affidavit of illegality thereto, and section 3301 provides that when such an affidavit of illegality is filed the mortgagor shall give bond “conditioned for the return of the property when called for by the levying officer, which bond shall be made payable to the plaintiff.” The purpose of this bond is to postpone the sale of the property, and, when returned with “all the proceedings and papers in the case to the court from which the execution issued,” to carry the case into court, “where the issue shall be tried as other cases of illegality.” The giving of this bond at the time of filing the affidavit of illegality is a condition precedent to the return of the papers into court. An affidavit unaccompanied by such a bond is not a compliance with the statute, and should be dismissed. Glass v. Austin, 28 Ga. App. 311 (111 S. E. 84). This case differs from that of Lytle v. DeVaughn, 81 Ga. 226 (7 S. E. 281), and Gelders v. Mathews, 6 Ga. App. 144 (64 S. E. 576), in that in each of those cases the only bond given ivas “given on filing an affidavit of illegality.” In those cases there was an attempt at the time of filing the affidavit of illegality to comply with the statute by giving a bond, but the bond given was irregular and subject to amendment. In this case there was no attempt to give an “illegality” bond. The case presented here is quite different from those where an amendment of an irregular bond given at the time of filing the affidavit of illegality was allowed. In addition to the above, the copy of the forthcoming bond, as it appears in the record, is not attested and was not accepted by the levying officer; and before such a bond would be a binding contract upon the parties whose names were signed thereto the acceptance of the bond by the levying officer would be essential. Fountain v. Napier, 109 Ga. 225 (2), 226 (34 S. E. 351). See also Glass v. Austin, supra.

As no bond was given as provided by section 3301 of the Civil Code of 1910, the “proceedings and papers” were improperly returned to the court, and there was no affidavit or bond in court which could be legally amended. The forthcoming bond given on the day of the levy and sometime before the execution and filing of the affidavit of illegality was not a “part and parcel” thereof. Under the above rulings the court did not err in refusing to allow the amendment to the affidavit of illegality. See Brantley v. Baker, 75 Ga. 676 (1); Glass v. Austin, supra; Kinney v. Avery, 14 Ga. App. 180 (1, 2) (80 S. E. 663); Hayes v. Savannah Chemical Co., 17 Ga. App. 376 (86 S. E. 1073).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.