Reynolds Banking Co. v. Beeland

Jenkins, J. (After stating the foregoing facts). In Reynolds Banking Co. v. Southern Pacific Guano Co., 140 Ga. 498 (79 S. E. 132), which was a former proceeding by which the "bank sought to enjoin the suit on the forthcoming bond referred to above, it is said in the opinion of the Supreme Court: “It follows from these decisions that the claimants had no right in an equitable petition to set up their title to the properly levied upon, after having elected to try that title by the remedy, of claim. It may be said that the claimants are precluded from ever contesting with their adversary the title to the property as being subject to [230] the fi. fa. To this we reply that they should have left the property in the possession of the -sheriff, or, if they took possession of it under a forthcoming bond, they should have retained the property' until the final disposition of the claim case. They were allowed by the statute, if the property was in their possession, or in the possession of the sheriff/ to file a second claim- after the dismissal or withdrawal of the first claim. Their inability to file a second claim, or contest with the plaintiff in fi. fa. the title to the property-, comes, not from any defect in the law, but from a failure on their part to observe the law, in that they appropriated the property to their own use before the litigation was ended.” (Italics ours.) Judgment affirmed,. Wade, C. J., and Luke, J., concur.