Lackey v. Mize

• Decision Date: 17 November 1885
• Citation: 75 Ga. 692
• Parties: LACKEY et al. v. MIZE, sheriff, for use.
• Court: Georgia Supreme Court

75 Ga. 692

LACKEY et al. v. MIZE, sheriff, for use.

Supreme Court of Georgia.

November 17, 1885

October Term, 1885.

An execution was levied and a claim interposed by a man as agent for his wife and children, and a forthcoming bond given. The property was found subject, and a breach of the bond occurred by a failure to deliver the property on the day of sale. Another claim was interposed by the wife in her own right and the usual bonds given. The property was found not subject. Suit was brought on the forthcoming bond given in the first case:

Held, that the record in the second case was admissible in evidence.

Evidence. Claims. Forthcoming Bond. Before B. B. HINTON, Esq., Judge pro hac vice. Sumter Superior Court. April Adjourned Term, 1885.

Reported in the decision.

E. G SIMMONS, for plaintiff in error.

HAWKINS & HAWKINS, for defendant.

JACKSON Chief Justice.

This is a suit on a forthcoming bond given by the claimant, W. L Lackey, as agent for his wife and children, for the delivery of a mare and buggy, should the property be found subject. It was found subject, and the jury found a verdict for the plaintiff, and Lackey and Toole, his surety, excepted to the denial of a new trial.

1. Among other grounds for the new trial taken by the plaintiffs in error is the refusal of the court to admit as evidence before the jury, another claim to the buggy and mare made by Mrs. Lackey in her own right, with the usual bonds accompanying it, and a verdict and judgment of not subject thereon. The defendant in error is the plaintiff in execution, the same execution in both cases. This claim was filed and verdict had thereon of not subject after the property was found subject in the first claim case, and was not received by the sheriff until the bond in the first case, sued on here now, was broken by a failure to deliver the property to the sheriff on the day of sale, and thus became forfeited (29 Ga. 110; 9 Id., 42), though the sheriff testified he would not have sold it, if delivered, because certain persons had guaranteed that he should not be hurt.

So that the question arises on the rejection of these claim papers, with this verdict and judgment that this identical property is not subject to this identical execution, whether, after the bond was broken and forfeited, it was admissible to show by the judgment against the same plaintiff in execution that the property belonged to this last claimant, and not to the defendant in execution.

In 54 Ga. 581, in an action on a forthcoming bond, it was held that, though the property was not delivered on the day of sale, if the plaintiff's debt was paid, even before the withdrawal of the claim, by virtue of which the execution proceeded, that payment could be proved, and plaintiff could not subject the property, Chief Justice Warner, who delivered the opinion of the court, saying: " The plaintiff's right to have the property delivered at the time and place of sale, to be sold by the sheriff, in satisfaction of his debt is founded on the idea that his debt is due and unpaid, and that he has been...