Edwards v. Boyd Co.

Atkinson, J. 1. The ruling in the first lieadnote sufficiently deals with the question there decided. [736] 2. The controlling question on demurrer is as to the sheriff’s liability in damages, under the allegations of the petition, on account of the failure on the part of the deputy to take the statutory bond, seize the property, or commit the defendant to jail. Under the provisions of the Civil Code of 1895, § 4605 (Code of 1910, § 5151), the affidavit for bail-trover having been appropriately made, it was the duty of the officer serving the petition and process “to take a recognizance payable to the plaintiff or complainant, with good security, in double the amount sworn to, for the forthcoming of such personal property to answer such judgment, execution, or decree as may be rendered in the case.” The statute further provides that “such security shall be bound for the. payment of the eventual condemnation-money, for which judgment may be signed up against the defendant and said security, and execution had thereon without further proceeding.” Under this law it was the duty of the officer to take a recognizance from the defendant in accordance Avith the statute, and his failure to require such recognizance Avas a breach of his official duty. This section of the code is to be construed in connection with the two preceding sections; and under its provisions, if the defendant fails to give security, whether the affidavit be made at the commencement of the suit or pending suit, it is the duty’ of the officer to seize the property sued for and deliver it to the plaintiff, his agent, or attorney, upon his entering into like recognizance with security; and if the property is not to be found and can hot be seized by the officer, he is required to commit the defendant to jail to be kept in safe and close custody until the property be produced or until he so enters into bond with good security for the eventual condemnation-money. ■ A failure on the part of the officer to seize the property, or, if it can not be seized, to commit the defendant to jail, is a breach of official duty. For the breach of any of these several duties the officer is liable to the plaintiff for any proximate resulting damage. According to the allegations of the' petition, though the defendant was in possession of the property, the sheriff did not take a recognizance-for the eArentual condemnation-money, nor seize the property, nor commit the defendant to jail, but in lieu thereof took a bond which was not a statutory bond for the eventual condemnation-money; and though he served the defendant, so that a general judgment might be entered against him for the [737] value of the property, he did not seize the property or arrest the defendant. The plaintiff was enabled to proceed to a verdict and judgment for the value of the property, but in addition to this the property should have been before the court, or a bond for the eventual condemnation-money, upon which the plaintiff might summarily, upon obtaining judgment against the defendant, also have entered judgment against the principal and security for the amount of the recovery; and to the end that the property might have been surrendered, or the statutory bond given, it was the plaintiff’s right to have had the defendant committed to jail. _ With regard to all of these matters it was alleged that the officer’s delinquency in official duty had made it impossible for the plaintiff to do more than enter a general judgment against the defendant for money. Under these circumstances, nothing further appearing*, it could -not.be said that the plaintiff had noj; sustained damages at the hands of the sheriff on account of the failure of official duty on the part of his deputy. What has been said follows from applying the statutes hereinbefore cited to the facts of this ease, and is borne out by the reasoning in the case of Snell v. Mayo, 62 Ga. 743, and citations. 3. The statement of facts discloses that the defendant sought to avoid liability on account of the matters set up in the third paragraph of his plea, and more fully stated in an amendment which he-offered to make at the trial term, but which was disallowed by the' judge. The judge also sustained a demurrer interposed by the plaintiff to the several matters set up by the defendant in paragraph three of his plea as matters of defense, thus disposing of all of the defenses relied on. From what has been said in the second division, and the reasoning in Snell v. Mayo, supra, it is clear that there was no error in so ruling with reference to any of the several matters of defense, save only that which set up that Mr. Bunch, who is alleged to be the agent of the plaintiff, ascertained, after 'the trover suit was filed, and the affidavit for bail had been made, by him, that the mules which were the subject-matter of the trover suit were dead and consequently not in possession of the defendant at the filing of the suit, and thereupon informed the deputy sheriff, when the latter went to serve the bail-trover process, that the statement contained in the affidavit that the mules were in the possession of the defendant was a mistake, and that he did not desire the [738] .bail .process executed, and thereby induced the deputy to believe that it was ¡not his duty to attempt further execution of the process and tq serve the defendant personally. The affidavit for bail in the trover suit, which was attached as an exhibit to the petition in the action against the sheriff, stated in broad language that Bunch was the agent, of the defendant corporation, and the plea interposed by the sheriff also stated in broad language that' Bunch was the agent of the plaintiff corporation. While the grounds of demurrer filed by the plaintiff to the several portions of paragraph three were nupnprous, none-of them called for more specific allegations as to the extent of the agency. It will be assumed that his authority was sufficiently broad to authorize him to give the .sheriff direction touching .the manner of executing the bail-trover process. The plaintiff was a corporation, which could only act through an agent, and, according to the plea and the recitals of the affidavit for bail, he was the agent of the corporation. After the discovery of the mistake in the recital contained in the affidavit for bail, it was in the interest of the plaintiff, as well as due to the affiant and to the defendant ,and the officer, that the agent call attention to it in such manner as would prevent execution of the bail process. To say otherwise would be to hold that this harsh remedy should be enforced when in .fact there was no ground upon which it .could be invoked. The law is not to be so administered. According to the allegations of the plea as amended, the conduct of the agent was in effect a dismissal of the bail feature of the trover action, and the sheriff ought not to be held liable for damages resulting from failure to seize the property or to commit the defendant to jail in lieu of his giving bond for the eventual condemnation-mioney. If the -action of the agent was a dismissal, the officer was under no duty to render any service involved in the dismissed part of the action — it . was entirely oiit of the case. In this connection see Holcombe v. Dupree, 50 Ga. 335; Groover v. White, 54 Ga. 601; 35 Cyc. 1616; State v. Woods, 7 Mo. 536; Ross v. Cave, 49 Mo. 129. What has been said deals with the original plea, together with the amendment which was proposed and disallowed. It was insisted in the brief of counsel for defendant in error that the amendment was 'll:. properly disallowed, because it was offered after the appearance term, and there was no affidavit attached as required by Civil Code of Í895, § 5057 (Code of 1910, § 5640), as amended by the act of [739] December 21, 1897 (Acts 1897, p. 35); but no such objection was made to its allowance at the time it was offered, and it appears from the recitals in the bill of exceptions that the judge disallowed it, not because of a failure to attach the statutory affidavit, but upon the ground that the matter referred to .did not constitute a valid-defense to the action. Had the point been made at the trial, it could have been met, if need be, by making the affidavit. Ward v. Frick, 95 Ga. 804 (22 S. E. 899). At any rate, the defendant would have had an opportunity to do so. But in view of the recitals in the bill of exceptions as to the ground on which this amendment was disallowed, it would be going too far to deprive a defendant of a substantial defense for the mere reason that no affidavit was attached, and the judge might not have exercised his discretion in allowing it to be filed without any affidavit, when it appears from the bill of exceptions that it was not disallowed on discretionary grounds. If the amendment was open to such objection, the plaintiff should have urged that with the other objections which were made; but he waived its form by objecting to its sufficiency in law without making the question as to its form. Moreover, when the original plea is considered in connection with what appeared in the affidavit for bail in the trover suit, attached as an exhibit to the petition in the action on the case, the matters set up in the amendment were merely enlargement upon the matters set up in the original plea, and did not set forth any ^ new facts or defense so as to require an affidavit under the statutes above mentioned. Judgment reversed. Beck, J., absent. The oilier Justices concur.