Allen v. Giddens ( 1968 )

Felton, Chief Judge.

1. Statutory claim is the ordinary remedy where property belonging to some person other than a party to the proceeding has been levied upon. Code § 39-801 (Ga. L. 1839, Cobb, 535; Ga. L. 1877, p. 22); Padgett v. Waters, 4 Ga. App. 306 (3) (61 SE 293).

2. The sole statutory provision of Code Ann. Ch. 58-7 for contesting the seizure of contraband beer under Code Ann. § 58-727 (Ga. L. 1937, pp. 148, 153) is the filing of a claim pursuant to Code Ann. § 58-729 (Ibid.), which is to be tried in the superior court “as other claims.”

3. Code Ann. § 58-729 is construed to allow claims by a party to the proceedings, as well as by third parties, since a contrary construction would have the effect of denying a remedy to such party, thereby rendering the section unconstitutional.

4. The defendant sheriff was not obligated to accept the bond for damages required by Code § 39-802 (Ga. L. 1821, Cobb, 533; Ga. L. 1872, p. 41), which accompanied the § 58-729 claim, since the bond had not been properly executed. General Motors Acceptance Corp. v. Allen, 59 Ga. App. 614, 615 (3) (1 SE2d 705) and cit. The claim, being thus defective, although timely filed, was properly dismissed by the trial court.

Judgment affirmed.

Eberhardt and Whitman, JJ., concur.