Continental Casualty Co. v. Bibb Chevrolet Co.

Sutton, J. 1. When an execution shall issue upon the foreclosure of a conditional bill of sale as a chattel mortgage, and shall be levied upon the personal property secured by the conditional bill of sale, the defendant in fi. fa. may interpose his affidavit of illegality and replevy the seized property by giving a bond in the manner prescribed in section 3301 of the Civil Code of 1910, such bond to be conditioned for the return of the property when called for by the levying officer. 2. In an action for an alleged breach of such a bond the obligors are liable for the full value of the property replevied, if it does not exceed the amount of the secured debt, or, in case it does exceed such debt, then in a sum equal to the latter, unless they show affirmatively that their failure to return the property when called for by the levying officer was caused by the act of God, and was^in no wise the result of their conduct or negligence. Carr v. Houston Guano Co., 105 Ga. 268 (31 S. E. 178); Early v. Hampton, 15 Ga. App. 95 (82 S. E. 669). 3. The law does not require a demand to be by a sheriff or a marshal on either the principal or the surety on a forthcoming bond, or a replevy bond, in order to establish a breach of the bond. Due advertisement of the property described in the bond is sufficient notice to the parties, and proof of the advertisement will suffice to show such breach, if the property be not produced at the time and place of sale. Stroud v. Hancock, 116 Ga. 332 (42 S. E. 496); Early v. Hampton, supra; Taylor v. Boynton, 7 Ga. App. 233 (66 S. E. 550); Hogan v. Morris, 7 Ga. App. 232 (66 S. E. 550); Rish v. Clements, 21 Ga. App. 287 (94 S. E. 318). 4. Where the affidavit of illegality interposed by the defendant in fi. .fa. is overruled and judgment rendered against the defendant in fi. fa., the seized property shall be sold and the proceeds of the sale applied to the mortgage execution. Civil Code (1910), § 3302. 5. A substantial compliance with section 53 of the act of 1925, amending the act creating the municipal court of Atlanta (Ga. L. 1925, p. 385), which provides for the advertisement of the sales of personal property by the marshal of that court, is sufficient. Brown Guano Co. v. Coker, 13 Ga. App. 614 (79 S. E. 582); Hill v. Kitchens, 39 Ga. App. 789 (148 S. E. 754). The advertisement in this case was a sufficient compliance with the above section of the act of 1925, in that it stated that the property would be sold before the court-house door in said county on a date named, which was ten days after the advertisement was posted, within the legal hours of sale, correctly described the property to be sold, and stated that such property was levied on as the property of the defendant in fi. fa., giving his address, by virtue of a mortgage fi. fa. issued from said court in favor of the plaintiff in fi. fa. against the de [524] fendant in fi. fa. The fact that the advertisement did not state the location of the place where the property was seized would not render the advertisement of no effect and excuse the defendant in fi. fa. or the surety on his bond in failing to produce the property on the day of the sale. Decided September 19, 1934. 6. The judgment overruling the affidavit of illegality and finding in favor of the plaintiff in fi. fa. the amount of the secured debt with interest, reciting that such sums were to be made out of the sale of the property levied on, was not a money judgment, but a special judgment against the property, and there is no merit in the contention of the surety that the plaintiff in fi. fa. should have proceeded under the money judgment and not on the mortgage fi. fa. issued at the time the chattel mortgage foreclosure affidavit was filed. 7. Applying the rulings above made, the court did not err in overruling the motion for new trial filed by the defendant surety company. Judgment affirmed. Jenhins, P. J., concurs. Stephens, J., dissents. M. E. Kilpatrick, for plaintiff in error. Harry 8. McOowen, contra.