Hightower, Pratt & Co. v. Hodges , 5 Ga. App. 408 ( 1909 )

Hill, C. J.

(After stating the foregoing facts.)

1. The amendment setting up as a defense the pendency of a. motion for new trial in the claim case should not have been allowed, as it was too late at the trial term to file a plea in abatement of the suit. Civil Code, §5058. The plea would not have been a good one if filed in time, as the filing of a motion for new trial does not operate as a supersedeas, unless so ordered by the court. Civil Code, §5476; Southern Express Co. v. Hunnicutt, ante, 262 (63 S. E. 26). However, as there was no evidence offered in support of this plea, and it was not relied upon, its allowance was not-reversible error.

2. The other objection to the amended answer was well taken.. The allegation that the property described in plaintiffs’ petition. “is not subject to-the fi. fa.” is too general. It should be specifically pointed out why the property was not subject to the execution. But this plea was bad in substance, and the evidence in support of it should not have been allowed. While the actual injury sustained by the plaintiffs on account of the failure of the sheriff to take from the claimant the statutory forthcoming bond for the personal property was the measure of the sheriff’s liability, we think this question was conclusively settled by the verdict and judgment in the claim case. It was the duty of the sheriff, when the property was delivered to the claimant, to take from him a bond for the delivery of the property at the time and place of sale, provided it should be found subject to the execution. Civil Code, §4614. The property levied upon was found subject to the execution, there was no forthcoming bond, and the claimant had disposed of the property which the sheriff illegally left in his possession. To escape liability for his failure to discharge his plain official duty, he can not be heard to attack the verdict and judgment rendered in the claim ease; the verdict and judgment are conclusive on him so far as his official duty in connection with the case is concerned.

Generally, in rules against the sheriff or in suits on his official bond for his failure to sell property levied upon, he can show that the property was not subject to the execution. Wilkin v. American Freehold Co., 106 Ga. 183 (32 S. E. 135), and cit. But this rule does not apply when the property levied upon has been found subject to the execution, and the damage to tire plaintiff is caused by the failure of the sheriff to take a forthcoming bond. In such case the sheriff will not be permitted to retry the issue already determined in the claim case; neither will the sheriff’s surety be heard to attack the verdict and judgment rendered in the claim case.

3. It was erroneous to permit the sheriff to attack the legality of the levy made by his deputy. The entry of the deputy recited a levy; there was no traverse of this return; the claimant had made an affidavit and executed a claim bond, accepted by the sheriff, reciting that a levy had been made. The sheriff could not defend one wrong by showing that his deputy had perpetrated another wrong. It would be absurd to allow the sheriff to say, “Yes, I failed to discharge my duty when I delivered the property levied ■upon to the claimant without taking from him a forthcoming bond, but I am excused from the result of my failure to discharge my statutory official duty, by the failure of my deputy to make a legal levy.”

4. The evidence in this case demanded a verdict for the plaintiffs for the full amount of their execution. They proved- the execution, the levy, the value of the property levied on and found subject to the fi. fa., which was in excess of the amount of the £. fa.; that the property had been delivered to the claimant; that no forthcoming bond had been taken from the claimant, and that the claimant had disposed of the property. It is difficult to imagine how a more complete case of official liability could .have been shpwn. Judgment reversed.

Powell, J., disqualified.