Mullis v. Kennedy

Lumpkin, J. (After stating the foregoing facts.) Forthcoming bonds are ordinarily given in connection with a claim case or an affidavit of illegality, where the possession of the property is desired pending the litigation. In the present instance no claim or illegality was interposed, but, after the levy of an execution based on the foreclosure of a chattel mortgage, the defendant desired to retain possession of the property. Accordingly, he tendered ' to the levying officer a bond executed by himself as principal, and by certain sureties, and reciting that they were bound jointly and severalty. The condition was that the property levied on should be produced at the time and place of sale on the fourth day of March, 1912. The property was thereupon delivered by the levying officer into the possession of the principal, who subsequently sold it and delivered possession to a third person. By section 6041 of the Civil Code (1910) it is declared that "All bonds taken by the sheriffs or other executing officers, from the defendants in execution, for the delivery of the property (on the day of sale or any other time) which they may have levied on by virtue of any fi. fa., or other legal process from any court, shall be good and valid in law, and recoverable in any court in this State having jurisdiction thereof.” This section seems to be peculiarly applicable to a case like the present, in which a levying officer leaves the property in the custody of the defendant, without the interposition of a claim or an affidavit of illegality, and takes a bond for its production. Section 13 of the Civil Code (1910) declares that "All bonds taken by public officers, under the laws of this State, shall be returned to the offices specified by law; and any person interested therein may bring suit thereon, in his own name, in any court having jurisdiction thereof.” ’Where a claim is interposed, and a forthcoming bond given, reciting the fact of the levy, and possession of the property thereby obtained, this estops the claimant and the surety on the bond from denying the completeness and sufficiency of the seizure of the property made by the levying officer; but the estoppel does not extend to the validity of the process, or the authority of the officer to make the levy, so as to prevent the claimant, on the trial of the claim case, from attacking them. So, where an affidavit of illegality is interposed, it may attack the validity of the proceeding or the authority of the officer, although a forthcoming bond may be given. But, in a suit u]Don [621] a forthcoming bond given in a case like this, where its execution is not denied, the only issue is whether or not there has been a breach of such bond. Neither the legality of the levy nor the authority of the officer to make it is an issuable fact. Oliver v. Warren, 124 Ga. 549, 551 (53 S. E. 100, 4 L. R. A. (N. S.) 1020, 110 Am. St. R. 188), and authorities cited. The suggestion to the contrary in Strange v. Franklin, 126 Ga. 715 (55 S. E. 943), was an obiter dictum. In that case an execution issued upon a void judgment was levied, and a forthcoming bond given. A suit was brought against the surety on the bond, and a judgment rendered in favor of the plaintiff, which was also void, because rendered by a court which had no legal existence. The defendant in this latter judgment voluntarily paid it, but subsequently brought an action against the plaintiff for money had and received. It was held that he could not recover. A suggestion as to what might have been set up in a suit on the replevy bond was not necessary to the decision. While the bond given in the case before us was not a good statutory bond, being made payable to the sheriff of the city court of Dublin, it was good as a common-law bond, and having served the purpose of obtaining the delivery of possession of the property by the levying officer to the principal, a recovery could be had for the breach of it, whether the process under which the levy was made was valid or not. The presiding judge held the process under which the levy was made to have been void. From what has been said it will be seen that this was erroneous. Judgment reversed. All the Justices concur.