Brown Guano Co. v. Coker

Hill, C. J. (After stating the foregoing facts.) I. The trial judge did not err in overruling the demurrer to thé amendment to the answer. While the general rule is that in suits on forthcoming bonds the title to the property levied upon is not involved, yet it is incumbent upon the plaintiff'to prove not only a breach of the bond, but also that the breach has resulted in damage to him. “In order for a levying officer suing for the use of a plaintiff in fi. fa. on a forthcoming bond to recover, he must show both breach and damage.” Breach of the bond is shown by proof that the property was not delivered at the time and place of sale. Grace v. Finleyson, 10 Ga. App. 480 (73 S. E. 689). The defendant would have the right to show that the breach of the bond did not result in damage to the • plaintiff, for the reason 'that the property levied upon, and for the forthcoming of which the bond was given, did not belong to the defendant in execution, but did belong to the principal obligor in the bond. In Williams v. Herrington, 12 Ga. App. 76 (76 S. E. 757), it was held, with reference to the foreclosure’ of the lien of a laborer on logs hauled by him for another, that “Where an execution issued upon such a lien -foreclosure is levied upon lumber in the possession of a person other than the one for whom the logs were hauled, the giving by such a person of a forthcoming bond to produce the property at the time and place of sale does not estop him, when suit is brought upon the bond, from asserting that at the time the execution was issued and the levy was made he was the owner of the property levied upon.” See, also, Lackey v. Mize, 75 Ga. 692, and Jones v. Spillers, 9 Ga. App. 473 (71 S. E. 777). 2. The advertisement of the sale of the property levied upon, which was excluded from evidence, was a substantial compliance with the Civil Code (1910), § 6062, which provides the manner in which the sheriff’s advertisements shall be made. It does not appear from the record that any specific objection was made to the advertisement; the ground of objection stated is merely that it was 617 “an invalid and insufficient advertisement.” Counsel in the argument before us urged the objection that no defendant is named in the advertisement, whereas the statute provides that the. advertisement must make known the plaintiff and the defendant; and that it is further defective because it states that the property “will be sold by sample and delivered where now located on the E. E. Moran estate in the fourth district of Terrell county, Georgia.” .An inspection of the advertisement will show that the first objection certainly was not good, for it is distinctly stated in the advertisement that the property was levied on “as the property of E. C. Coker, to satisfy a mortgage fi. fa. issued from the city court of Dawson, said county, in favor of the Brown Guano Company, for use of A. J. Hill.” The only inference from this statement is that E. C. Cokef was defendant in fi. fa. A sufficient description of the property and its location is given in the advertisement, and we do not know of any valid reason why the property could not have been sold by sample and subsequently delivered where located as described in the advertisement. Civil Code (1910), § 6060. We think therefore that the court erred in ruling qut the advertisement. With this advertisement in evidence, and with the other evidence offered by the plaintiff, the questions of breach and damages should have been submitted to the jury for determination, and not decided by 'the court as a matter of law. Judgment reversed.