Kinney v. Avery & Co.

Pottle, J. The headnotes set forth the opinion we entertain of the various questions raised in the record. The bond sued on was not a good statutory bond, but was a good common-law obligation, and suit could be maintained on it in the name of the officer for the use of the plaintiffs. Suit could not be brought by plaintiffs not named in the bond as obligees. For this reason the demurrer which raised the point that no cause of action.was set forth in favor of the plaintiffs should have been sustained. The defect, however, is amendable so as to let the suit proceed in the name of the levying officer for the use of the plaintiffs. Civil Code, § 5689. The court was right in holding that the execution of the bond estopped the defendants from attacking the regularity or validity of the mortgage-foreclosure proceedings. The court erred, however, in holding that the dismissal of the affidavit of illegality, for want of prosecution, and the judgment ordering that the execution proceed, estopped the defendants from showing that, either before or after the affidavit of illegality was filed, certain payments had been made to the mortgagees which had not been credited on the fi. fa. Neither were the defendants estopped from -proving an accord and satisfaction of the mortgage debt, made either before or after the affidavit of illegality was filed. The dismissal of the affidavit of illegality was not an adjudication of the merits of the issue therein tendered. If no bond had been given, the officer would have been required to make a new levy, and another illegality could have been filed. Bond having been given in lieu of the property, the action on the bond was the legal equivalent of a new levy. The only opportunity the defendants could ever have to show payment would be in a defense to a suit on the bond; and, never having had this defense determined, the dismissal of the affidavit of illegality did not preclude them from setting it up. The defendants are entitled to have credited on the mortgage fi. fa. the value of the property received by the plaintiffs from the bankruptcy court, but the mere reception of this property would not amount to a satisfaction of the mortgage execution. While the original answer denied all the material allegations in the petition, still it is apparent from the amended answer that the defendants did not contest the fact of the existence of the foreclosure proceedings, copies of which were attached to the petition. For this reason they can not complain that a copy of the proceedings was ad [183] mitted in evidence, and we are not now required to rule upon tlie defendants’ point that the seal of the officer should have been attached. Prior to the adoption of the code the general rule was that a certified copy of an office paper was required to be under the hand and seal of office of the person signing and certifying it. Thomas-son v. Driskell, 13 Ga. 253. It would seem that since the adoption of the code, with certain exceptions, the official seal of an officer of the State or county need hot be attached to render the certified copy admissible in. evidence in the courts of this State. Civil Code, § 5798. The rule is otherwise in reference to municipal officers (Civil Code, § 5803); and section 220 provides that a copy of the bond of the treasurer, certified by one of the Governor’s secretaries, and bearing the seal of the executive department, shall be received in evidence. Section 1773 provides that a copy of the official analysis of any fertilizer or chemical, to become admissible, shall bear the seal of the department of agriculture. Section 2212 requires that certified copies of corporation returns, from the records of file in the secretary o,£ State’s office, shall bear the seal of his office, to be admissible. Judgment reversed.