Evans v. Callaway

Atkinson, J. Certain justice court executions in favor of Arnold Grocery Company against J. R. Evans were levied on described goods as the property of the defendant in fi. fa. Affidavits of illegality were interposed, and in order to get possession of the property the defendant executed and delivered to the levying officer bonds conditioned to deliver the property “at the timé and place for sale,” in the event that the illegalities “should be dismissed by the court or withdrawn.” The property was then delivered to the defendant, who afterwards sold or otherwise disposed of it so that he could not produce it in terms of the bonds. In the superior court the levying officer, for the use of the plaintiff in fi. fa., instituted suit on the bonds for the amount due* on the fi. fas., which was less than the value of the property levied on. The defendant (the principal in the bonds) interposed a plea which, as amended, admitted what has just been stated, and set up, in substance, the following: The ground of illegality was that the defendant had not been served in the suits in the justice court. While the illegality cases were pending on appeal in the superior court, and before the term convened, the defendant and the attorney of plaintiff agreed upon a settlement of the cases. Under the agreement the defendant “was to pay cash $100,” and the attorney “was to stop all further costs, and was to accept rent notes for the balance, and upon this was to mark the said case settled.” The defendant paid the $100, and the attorney “agreed to carry out the other terms of the contract,” and, relying on such promise, defendant did not attend court; but “instead of carrying out this contract, said plaintiff by its attorney dismissed” the affidavits of illegality, and “refused to accept rent notes or abide said contract.” The defendant alleges that it “is inequitable not to enforce said agreement,” and it is prayed that the “agreement be enforced and said cases be reinstated in the court,” and the issue tried, and that in the meantime the suit on the bonds be enjoined. Eeld: 1. Construed in its entirety and in the light of the prayers, the object of this portion of the plea was to set aside the judgment of the superior court dismissing the illegality cases, and to reinstate them for trial, and to enjoin the suit on the forthcoming bonds. 2. The attack made upon the judgment dismissing the illegality cases, in the plea of the defendant in the suit by the levying officer on the forthcoming bonds, was merely a collateral attack, and would not suffice as a basis for setting aside the judgments or for the grant of injunction. Porter v. Rountree, 111 Ga. 369 (36 S. E. 761) ; Alabama Great Southern R. Co. v. Hill, 139 Ga. 224 (76 S. E. ,1003). 3. There was no error in striking th'e plea. Judgment affirmed. All the Justices concur.