McGarrity & Co. v. Thomas

Hill, C. J.

(After stating the foregoing facts.) We think the judgment of dismissal was right, under the general principle decided in Woodliff v. Bloodworth, 121 Ga. 456 (49 S. E. 289), and cases there cited. The plaintiffs in error seek to avoid the effect of this decision and of others announcing the same principle, by insisting that their election in the court below to take a general judgment was tantamount to an abandonment of their attachment, and the abandonment of the attachment carried with it the replevy bond, and the surety thereon was no longer liable, and that, being released from liability on the replevy bond, he became a proper surety on the appeal bond. This would be true if the premise were entirely sound.

The plaintiff did not dismiss the attachment in the court below, but, in view of the traverse to the grounds of the attachment, only took in that court a general judgment in personam. But the appeal which was subsequently entered by the defendants carried with it the entire case and became a de novo investigation in the superior court, and - the plaintiff in attachment, notwithstanding the fact that he had taken only a general judgment in the court below, could, on the trial of the appeal, insist on a judgment in rem, as well as on a judgment in personam. Civil Code (1910), § 5014. And this right kept alive the possible liability of the defendant in attachment and his surety on the replevy bond

We think, therefore, that under the facts in this case and in view of the contingent liability on the. replevy bond resulting from the appeal and the de novo investigation, the court-, was fully warranted in dismissing the appeal, on the ground that no sufficient appeal bond had been given, because the surety on that bond was also surety on the replevy bond. Judgment affirmed. ■