Brantley v. Baker

1 Ga. L. Rep. 272

Opinion

Jackson, C. J.

1. The giving of a bond is a condition precedent to the return of the papers to court for trial, where an affidavit of illegality is tendered to the execution issued on the foreclosure of a chattel mortgage; and if the bond be not conditioned substantially as the statute requires, the papers ought not to be returned to court and the sale suspended. Code, §3976; 61 Ga., 390, 391.

2. The condition of the bond prescribed by the statute is “for the return of the property when called for by the levying officer.” This requirement is not met by a bond the condition of which is that the defendant “should return the property * * to the levying officer, in case the issue formed on the affidavit of illegality * * should be found against the said W. D. Brantley” (the defendant); and an affidavit accompanied by such a bond was properly dismissed. Code, §§3971, 3972, 3975, 3979; 61 Ga., 391.

•Jordan & Lewis; Harrison & Peeples, for plaintiff in error. James A. Harley, for defendant.

•Judgment affirmed.