Bearden v. General Motors Acceptance Corp.

176 S.E.2d 652, 122 Ga. App. 180, 1970 Ga. App. LEXIS 823

• Court: Court of Appeals of Georgia
• Decided: June 23, 1970
• Docket: 45314
• Status: Published

Opinions

Hall, Presiding Judge.

Defendant bondsman appeals from the judgment in a suit on a forthcoming bond for the difference between the value of the property at the time of the bond and its value when turned over to the sheriff for sale. For a previous appeal in this case see General Motors Acceptance Corp. v. Bearden, 114 Ga. App. 392 (151 SE2d 517).

1. Code § 39-304 allows recovery on a forthcoming bond for the diminished value of property which has been levied upon but retained and used prior to judicial sale. The value of the property is fixed by the levying officer in order to set the amount of the forthcoming bond. This amount is prima facie evidence of the value of the property as against the claimant. Dickens v. Maxey, 42 Ga. App. 783 (3) (157 SE 368). Here the sheriff set the value of the automobile in question at $1,600 and apparently neither defendant nor the debtor made any objection. The sheriff also testified that, in his opinion, the automobile was well worth this amount at the time the bond was given (1964). Defendant introduced no evidence disputing that the automobile had a value of $1,600 at that time. The car was sold by public outcry two and one-half years later for $285, the highest bid. Defendant did produce testimony from the mechanic who had regularly serviced the car that it was worth just as much when sold as when the bond was given. However, the debtor, the defendant and their lawyer were all present at the sale and made neither an objection to its conduct nor any attempt to bid up the price. Evidence of what the property brought at the sheriff’s sale is admissible on the question of its value. May v. Leverette, 164 Ga. 552 (11) (139 SE 31). The jury was authorized to find that the value of the automobile at the time of sale was the amount it actually brought upon sale, $285; that its value had diminished during the course of the bond by $1,315; and to render a verdict for that amount.

Argued May 6, 1970 Decided June 23, 1970 Rehearing denied July 10, 1970

2. Defendant contends the court erred in charging that the value of the property as set by the bond is prima facie evidence of the value of the property as against the defendant and that there is a presumption the sheriff performed his duty in setting the valuation, without also charging that the prima facie evidence and the presumption are rebuttable. Assuming without deciding that these omissions were error, they were harmless since defendant did not, in fact, introduce any rebuttal evidence on these points.

3. The court did not err in denying defendant’s motion to dismiss the complaint nor in allowing it to be amended over defendant’s objection. Byrd v. Ford Motor Co., 118 Ga. App. 333 (163 SE2d 327); Code Ann. § 81A-115(a).

Judgment affirmed.

Bell, C. J., Jordan, P. J., Eberhardt, Pannell, Deen, Quillian and Whitman, JJ., concur. Evans, J., dissents. Eva L. Sloan, for appellants. Martin, Snow, Grant & Napier, Joseph B. Duke, Cubbedge Snow, Charles M. Stapleton, for appellee.