Webb v. Pope

45 S.E. 478, 118 Ga. 627, 1903 Ga. LEXIS 637

Opinion

Pish, P. J.

A and B gave their joint note to C for the purchase-money of a mule. After maturity, C sued out an attachment for purchase-money,, against both A and B, for the balance due on the note. The attachment was-levied upon the mule, which was in the possession of A. He replevied the-property by giving a bond signed by himself as principal and by two sureties. The bond recited that C had sued out an attachment against A, and obligated A and his sureties to pay C the amount of the judgment and costs that C might recover against A. Subsequently C filed a petition under the Civil Code, §4556, against A and B, based on the attachment against them, for the recovery of the balance due on the joint note, copy of the same being attached to the petition. There being no issuable defense filed, a judgment was rendered against A and B and the sureties on A’s replevy bond.

Held, that, as the bond signed by the sureties did not obligate them to pay a-, judgment which C might recover against A and B in an attachment which he had sued out against them, the judgment was void as to the sureties and could-be attacked by them upon this ground by affidavit of illegality.

Judgment reversed.

By five Justices_

Affidavit of illegality. Before Judge Griffin. City court of Valdosta. September 19, 1902.

O. M, Smith aud Q. A. Whitaker, for plaintiffs in error. L. E. Zastinger and Felder & Rountree, contra.