Farmers & Merchants Bank v. Cochran , 37 Ga. App. 794 ( 1928 )

Stephens, J.

1. Where, after a claimant of personal property had given a forthcoming bond to the levying officer and had taken the property, and the issue on the trial of the claim case had been determined against the claimant, the claimant, without surrendering the property to the levying officer and while the property was still in the claimant’s possession, caused tlie levying officer to apply for and obtain a short-order sale upon the ground that the property, a mule, was expensive to keep, and where the claimant did not deliver the property to the levying officer until the day upon which it was sold under the short order, when the claimant delivered the property to the levying officer and immediately bought it in as the highest bidder, and thereupon took the property and redelivered it to a third person to whom the claimant prior to the sale had already delivered it under a contract of sale, by the terms of which the purchaser would obtain full title to the property in the event the claimant prevailed in the claim case, it appears that there was not and could not be a legal or bona' fide surrender of the property by the claimant to the levying officer. Boyd v. Crews, 32 Ga. App. 138 (122 S. E. 802).

2. In a suit by the plaintiff in fi. fa. against the claimant, to recover on the forthcoming bond for the value of the property alleged to have been converted by the defendant, the verdict for the plaintiff was authorized by the evidence.

3. The court, fairly to the defendant, submitted the issues to the jury, and nowhere erred in refusing to charge as requested, or in the admission or rejection of testimony.

4. The petition as originally filed contained enough to amend by; and the amendments set out no new cause of action, but were germane and were properly allowed. The petition as amended set out a cause of action on the bond, and was not subject to any of the demurrers.

Judgment affirmed.

Jenlcms, P. J., and Beil, J., conewr.