Kirkland v. Southerland

Court of Appeals of Georgia

Kirkland v. Southerland

75 S.E. 832, 11 Ga. App. 538, 1912 Ga. App. LEXIS 99

CourtCourt of Appeals of Georgia

DecidedSeptember 27, 1912

Docket3738

StatusPublished

This text of 75 S.E. 832 (Kirkland v. Southerland) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kirkland v. Southerland, 75 S.E. 832, 11 Ga. App. 538, 1912 Ga. App. LEXIS 99 (Ga. Ct. App. 1912).

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Opinion

Russell, J.

1. Construing sections 12 and 13 in connection with section 298 of the Civil Code, any person aggrieved by the failure of a sheriff to pay over to him the overplus remaining from the sale of his property, after the satisfaction of the fi. fas. under the levy of which it [539]*539was brought to sale, may maintain an action against the sheriff and the sureties upon his bond, where it appears that the sheriff acted under the bond, gave no other official bond, and that the cause of action originated in the breach by the sheriff of his official, duty.

Decided September 27, 1912.

Action on bond; from city court of Douglas — Judge McCall presiding. August 33, 1911.

M. D. Dickerson, for plaintiff. F. Willis Dart, O’Steen & Wallace, for defendants.

2. It does not appear from the petition that the action was barred by the statute of limitations.

3. It was error to sustain the demurrer and dismiss the petition upon 'the ground that the bond was payable to the ordinary and that the suit was brought by the person aggrieved. Judgment reversed.

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Russell, J.

1. Construing sections 12 and 13 in connection with section 298 of the Civil Code, any person aggrieved by the failure of a sheriff to pay over to him the overplus remaining from the sale of his property, after the satisfaction of the fi. fas. under the levy of which it [539]*539was brought to sale, may maintain an action against the sheriff and the sureties upon his bond, where it appears that the sheriff acted under the bond, gave no other official bond, and that the cause of action originated in the breach by the sheriff of his official, duty.

Decided September 27, 1912.

Action on bond; from city court of Douglas — Judge McCall presiding. August 33, 1911.

M. D. Dickerson, for plaintiff. F. Willis Dart, O’Steen & Wallace, for defendants.

2. It does not appear from the petition that the action was barred by the statute of limitations.

3. It was error to sustain the demurrer and dismiss the petition upon 'the ground that the bond was payable to the ordinary and that the suit was brought by the person aggrieved. Judgment reversed.

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Bluebook (online)

75 S.E. 832, 11 Ga. App. 538, 1912 Ga. App. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkland-v-southerland-gactapp-1912.