Garrett v. Combs

104 S.E. 251, 25 Ga. App. 274, 1920 Ga. App. LEXIS 736

• Court: Court of Appeals of Georgia
• Decided: May 5, 1920
• Docket: 11131
• Status: Published

Opinion

Jenkins, P. J.

1. The exception taken to the refusal of the trial judge to strike the plea of the defendant is controlled hy the ruling made by this court in Southern Express Co. v. Chero-Cola Bot. Co., 24 Ga. App. 189 (100 S. E. 289); s. c. 150 Ga. 430 (104 S. E. 233). Under the facts of this case, which are similar to those there stated, the court did not err in the refusal to strike.

2. Where a fi. fa. is levied on personal property sufficient to pay the debt, and a forthcoming bond with security is given by the defendant in fi. fa., and where upon a claim being filed to the property the plaintiff in fi. fa. withdraws the original fi. fa., pending the claim proceeding, and levies upon additional property of the defendant, and under the second levy another forthcoming bond with new sureties is given, upon a suit brought upon the second bond a verdict in favor of the defendants would he authorized where it appears that upon a suit on the first forthcoming bond the plaintiff compromised with the solvent surety thereon by accepting from him a certain sum in satisfaction of all liability on his part. Under such a state of facts the previous levy remains unaccounted for, and, so far as the sureties on the second bond are concerned, amounts to a satisfaction of the fi. fa. Civil Code (1910), §§ 6047, 6048.

Decided May 5, 1920. Adhered to on rehearing, September 17, 1920.

Action on bond; from city court of Carrollton — Judge Beall. November 3, 1919.

C. E. Roop, Boykin & Boykin, for plaintiff. S. Holderness, Leon Hood, for defendant.

Judgment affirmed.

Stephens and Smith, JJ., concur.