Rehberg v. Peacock

Bloodworth, J.

. Where a sheriff, for the use of a plaintiff in fi. fa., brought suit on a forthcoming bond, and it appeared from the petition that he levied on certain property to which a claim was filed and for which a forthcoming bond was given, and that the claim was withdrawn, $lie property advertised, and another party-filed a claim under the same levy and executed a bond for the forthcoming of the property, and that, while this second claim was still pending in the courts, suit was brought on the forthcoming bond given under the first claim and recovery had thereon for the value of the property, and the money thus raised was applied to the execution originally levied, and the property was again advertised and not produced by the second claimant, and suit was thereafter brought against the claimant and his surety on the forthcoming bond executed in the second claim, and it was not made to appear in the petition that the bond in the second case was ever accepted by the sheriff, but it did appear that the property levied on was never delivered to the claimant in the second case, and the petition was demurred to generally, and on the special ground that it showed that the plaintiff in execution had received the proceeds of the suit on the forthcoming bond given in the first claim, the court properly sustained the .demurrer and dismissed the petition.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.