Rooks v. Odum

Jenkins, P. J. In an action of bail-trover, where on the failure of the defendant to give bond as provided by the Code, § 107-202, the property was delivered by the sheriff to the plaintiff on his giving bond under § 107-203, and where the judge trying the issue, without a jury, found in favor of the defendant’s plea in abatement, setting forth that- the trover proceeding was null and void because it was instituted on Sunday, and proceeded to dismiss the action, the defendant was entitled, on oral motion before the order of dismissal was entered, to have the judgment include an order for the restoration of the possession of the property to him. Such an order would simply restore the status of the parties-to that obtaining’ before the institution of the proceeding, and would not in such a case have the effect of adjudicating the merits of the title or right to the property involved. See Calloway v. McElmurray, 91 Ga. 166 (17 S. E. 103); Glover v. Gore, 74 Ga. 680; Marshall v. Livingston, 77 Ga. 21. Judgment revised. Stephens and Sutton, JJ., concur.