Block v. Tinsley

• Decision Date: 27 February 1895
• Citation: 22 S.E. 672,95 Ga. 436
• Parties: BLOCK et al. v. TINSLEY.
• Court: Georgia Supreme Court

22 S.E. 672

95 Ga. 436

BLOCK et al.

v.TINSLEY.

Supreme Court of Georgia.

Feb. 27, 1895.

Bail Trover—Nonsuit—Liability on Bond.

Where, in a bail-trover action, the plaintiffs were nonsuited, and a judgment against them was rendered in favor of the defendant for the value of the property as recited in the bond which had been given by the plaintiff to acquire possession of the property, the defendant having failed to give bond, to which judgment no exception was taken, there was no error in dismissing, on demurrer, an equitable petition to restrain the collection of an execution issued upon that judgment, although, after the nonsuit had been granted, and pending action by the court upon a motion to enter the money judgment, the plaintiffs had surrendered the property to the levying officer, and renewed their action of bail trover. (Syllabus by the Court.)

Error from superior court, Bibb county, j. L. Hardeman, Judge.

Action of bail trover by A. & N. M. Block against Minnie Tinsley. Judgment of nonsuit, and judgment against plaintiffs on their bond. Plaintiffs bring equitable petition to reopen the proceedings. Dismissed, and plaintiffs bring error. Affirmed.

Freeman & Griswold, for plaintiffs in error.

Harris & Harris and Hardeman, Davis & Turner, for defendant in error.

LUMPKIN, J. A. & N. M. Block brought an action of bail trover against Minnie Tins-ley for the recovery of certain personal property. The defendant failing to replevy the same, the plaintiffs gave bond, as provided in section 3420 of the Code, and took possession of the property. This case was tried on the 13th day of June, 1894, and resulted in a judgment of nonsuit. Thereupon, counsel for the defendant asked leave to enter a judgment against the plaintiffs and their surety for the value of the property as recited in the bond, and the judge announced that he would reserve his decision upon this motion. The clerk having failed to enter the judgment of nonsuit on the minutes upon the day it was rendered, an order was passed on June 23, 1894, directing that such judgment be so entered nunc pro tunc. On the same day another order was passed, and entered on the minutes, adjudicating that the defendant recover of the plaintiffs and their surety on the bond the sum of $200, which was the value of the property, as stated in the bond. This last order recited the motion which had been previously made by the defendant for this judgment, and the fact that the court had reserved its decision upon the same. It appears that on June 19, 1894, the plaintiffs had surrendered the property to the deputy sheriff who had originally seized it, and on June 21, 1894, had brought another action of bail trover for its recovery against the defendant Tinsley. An execution was issued upon the judgment which she had obtained as above stated, and thereupon the Blocks brought an equitable petition, alleging, among other things, the foregoing facts, and the insolvency of Tinsley, and praying that the enforcement of her execution be restrained until their rights in the second bail trover action could be heard and finally determined. This petition was dismissed on demurrer alleging that it set forth no equita-ble cause of action. The ruling by the court in this regard presents the only question for review. In passing upon this question, we will first call attention to the...