Hunter v. Garmany

Broyles, C. J. 1. Where property levied on has been released on a forthcoming bond and is not produced on the day of sale, the plaintiff in fi. fa. has two remedies. He can proceed directly against the sheriff by an action on the case or by rule; or he can bring suit upon the forthcoming bond, either in his own name or in the name of the sheriff for his use, provided that he has ratified the action of the sheriff in accepting the bond where it was taken without the consent of the plaintiff in fi. fa. These two remedies are inconsistent, and where the plaintiff in fi. fa. elects to sue on the forthcoming bond, and the suit results in a verdict and judgment against him, he can not subsequently bring an action against the sheriff, either on that officer’s official bond or by rule. Bacon v. Moody, 117 Ga. 207 (43 S. E. 482); Hand v. Brown, 144 Ga. 272, 274 (86 S. E. 1080). 2. Although the sheriff may have accepted the forthcoming bond and released the property without the consent of the plaintiff in fi. fa., yet where the plaintiff in fi. fa. elects to sue upon that bond, his action in bringing the suit amounts to a ratification of the sheriff’s act in releasing the property upon the bond, and he can not thereafter maintain a suit against the sheriff. Hand v. Brown, supra. (a) This ruling is not affected by the fact that in the instant case the sheriff, subsequent to the release of the property on the forthcoming bond, took, without the consent of the plaintiff in fi. fa., another forthcoming bond (for the same property and signed by different sureties), as a substitute for the first bond, and that no suit upon this second bond was ever brought. 3. This was a suit upon a sheriff’s official bond, and under the above-stated rulings the court did not err in directing a verdict for the defendants; and no error appears in the rulings upon the admissibility of evidence. Judgment affirmed. Luke, J., concurs. Bloodworth, J., absent on account of illness.