Blakely v. Cobb
| Decision Date | 08 December 1908 |
| Docket Number | (No. 1,391.) |
| Citation | 5 Ga.App. 289,63 S.E. 24 |
| Court | Georgia Court of Appeals |
| Parties | BANK OP BLAKELY . v. COBB. |
Replevin (§§ 103, 83*)—Possession Taken by Plaintiff — Judgment fob Defendant — Damages.
In an action of bail trover, if the defendant does not replevy, and the plaintiff executes the bond prescribed by section 4000 of the Civil Code of 1895, and takes possession of the property, and the plaintiff thereafter fails to establish his right to recover, the defendant is entitled to take, as against him, his choice of the three forms of verdicts and judgments prescribed by sections 5334, 5335, and 5338 of the Civil Code of 1895. If he chooses a money verdict, he has an election of taking either the highest proved value of the property between the date the plaintiff received it and the time of the trial, without the addition of hire or interest, or of taking the market value of the property at the date the plaintiff received it, together with interest or hire, accordingly as he may prove.
[Ed. Note.—For other cases, see Replevin, Dec. Dig. §§ 103, 83.*]
(Syllabus by the Court.)
Error from City Court of Blakely; W. A. Jordan, Judge.
Action by the Bank of Blakely against W. T. G. Cobb. Judgment for defendant, and plaintiff brings error. Affirmed.
Pottle & Glessner, for plaintiff in error.
Park & Collins, for defendant in error.
The bank instituted an action of trover against Cobb and required bail. The defendant being unable to givebail, the plaintiff! took the property and gave bond, under section 4606, Civ. Code 1895. On the trial the defendant elected to take a money verdict in the event the plaintiff should fail to recover. The jury found a verdict in favor of the defendant for a named sum of money. The plaintiff filed a motion for a new trial, in which it presents a number of alleged errors. We do not think it necessary to discuss all the grounds in detail. We deem it sufficient to say that, in so far as the verdict is a finding against the plaintiff's right to recover, it is not without evidence to support it, and that after a careful review of the exceptions taken we find no error on the part of the court prejudicing or tending to prejudice the plaintiff's case as to this issue.
The plaintiff in error, complains, however, that the court erred in charging the jury that if they found against the plaintiff's right to recover they might find in favor of the defendant a money verdict for the property according to the highest value proved between the date the plaintiff received the property and the time of the trial. It is contended that the defendant in such a case is entitled only to a verdict of restitution, and not entitled to the choice of verdicts allowed to plaintiffs in trover cases by Civ. Code 1895, § 5335. It is said, further, that in no event is section 3917, which provides that, "in estimating the value of personalty unlawfully detained, the plaintiff may recover the highest amount which he can prove between the time of the conversion and the trial, " applicable in behalf of the defendant in such a case; also that, even if a money verdict is allowable, it should be for only the market' value of the property at the date of the execution of the bond, with interest, and that there is in the record no evidence of the market value of the property at the time of the giving of the bond. This last objection may be disposed of summarily by the statement that the verdict is for less than the value of the property as it is alleged in the plaintiff's petition and bail affidavit. It has been repeatedly held that as against the plaintiff these allegations of value are binding and dispense with proof by the defendant.
After running through the various decisions made by the Supreme Court as to the right of the defendant where the plaintiff has given bond under section 4000, Civ. Code 1895, we are constrained to hold that the...
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Marshall v. Fulton Nat. Bank
...rental value per day from the day of conversion). See O'Neill Mfg. Co. v. Woodley, 118 Ga. 114, 44 S.E. 980; Bank of Blakely v. Cobb, 5 Ga.App. 289, 290-291, 63 S.E. 24; Youngblood v. Ruis, 96 Ga.App. 290, 291(3, 4), 294, 99 S.E.2d 714. Compare Wilson-Weesner-Wilkinson Co. v. Collier, 62 Ga......
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Zachos v. Rowland
...a defendant to make an election is where the plaintiff has replevied the property and fails to recover at the trial. Bank of Blakely v. Cobb, 5 Ga.App. 289, 63 S.E. 24. Nothing appears to support the contention made in brief counsel for the plaintiff in error that the wording of Section 107......
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Zachos v. Rowland
...a defendant to make an election is where the plaintiff has replevied the property and fails to recover at the trial. Bank of Blakely v. Cobb, 5 Ga.App. 289, 63 S.E. 24. Nothing appears to support the contention made in brief of counsel for the plaintiff in error that the wording of Section ......
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Pound v. Baldwin, (No. 16619.)
...property, a money verdict in favor of the prevailing party, even though that party be the defendant, is permissible. Bank of Blakely v. Cobb, 5 Ga. App. 289, 63 S. E. 24. Such a verdict may be accepted by the party in whose favor it is rendered, though he may have failed to make such electi......