Marshall v. Livingston

• Decision Date: 31 March 1886
• Citation: 77 Ga. 21
• Parties: Marshall. vs. Livingston.
• Court: Georgia Supreme Court

77 Ga. 21

Marshall. vs. Livingston.

Supreme Court of the State of Georgia

MARCH TERM, 1886

Trover. Bonds. Principal and Surety. Practice in Superior Court. Judgments. Practice in Supreme Court Estoppel. Before Judge Fort. Macon Superior Court November Term, 1885.

On December 14, 1883, T. J. Marshall brought suit against H. H. Livingston to recover certain corn, fodder, cotton and cotton seed, and on the same day made affidavit to obtain bail process. In this he stated that the value of the property was $405.50. The sheriff seized the property' except a part of the corn, and the defendant failing to give bond, delivered it to the plaintiff, who gave a bond dated May 13, 1884. The defendant filed a plea of the general issue. At the May term, 1884, counsel for the plaintiff moved the court to dismiss the case, which motion was granted, and an entry to that effect was made on the bench docket, but no order was entered on the minutes. At the November term, 1884, the defendant moved to have the case re-instated, but on objection of the plaintiff's counsel, the court over-ruled the motion. At the same term, the defendant moved to enter judgment on the bond given by the plaintiff.

On May 12, 1885, the defendant filed a petition reciting the above facts and praying a rule nisi against the plaintiff to show cause why the order of dismissal should not be entered nunc pro tunc. On the same day, the plain-tiffs attorney moved, in writing, that the case be re instated. On May 14, the plaintiffs attorney, in writing, offered to turn over the property to the defendant, if the latter would give the bond required by law, and moved that the trover case proceed to trial. He stated also in this motion that the property was delivered to him sometime before the bond was given.

The court granted an order allowing the dismissal to be entered nunc pro tunc; also an order refusing to allow the case to be re-instated. He also entered judgment against the plaintiff and his security for the value of the property, as stated in the bail affidavit.

The plaintiff filed three bills of exceptions, excepting to the three rulings above stated respectively. Each of these was certified December 30, 1SS5. The bill of exceptions to the entry of judgment on the bond assigns error because the court entered judgment without a jury, and also because the court heard testimony and entered judgment in the absence of the plaintiff's counsel and of all the papers. The presiding judge states in a note that the case was fully heard during the first week of court, counsel for both sides and all of the papers being present, and that the decision was reserved; that counsel for the plaintiff left without any leave of absence, expecting to return on Wednesday of the second week of court, and carrying the record with him; that the court waited until Wednesday afternoon, and hearing nothing of the absent counsel, proceeded to render his decision; that counsel for the defendant stated that counsel for the plaintiff had suggested that the bond was given after the dismissal of the case; that the sheriff was sworn and stated that the bond was taken before the dismissal; and that the court thereupon rendered judgment.

W. S. Wallace & Son, for plaintiff in error.

B. B. Hinton; A. A. Carson; W. A. Hawkins, for de-

fendant.

Hall, Justice.

1. These three bills of exceptions, taken by the same party in one cause and on the same record, make but a single material question, and that is, whether the voluntary dismission by the plaintiff of his action of trover, in which bail was required, and the delivery of the property in question to him on the bond required by the statute, where the defendant failed to replevy it, amounts in law to a judgment of restitution, and ipso facto upon such dismissal, entitled the defendant to a writ of restitution, or, where it was impossible to restore the subject of the action in kind, a writ of fieri facias for the value thereof. At common law, from a very early period this appears to have been the course pursued by the courts.

In Goodyere vs. Ince, Cro. Jac, 246, the law was thus laid down by the entire court; the question being, where a judgment was reversed, whether the defendant therein should be restored to the lease itself which had been disposed of on an extent, or to the value for which the sheriff delivered it in execution, viz., one hundred pounds, "for it was alleged that the sale was good, and that afterward it had come into two or three hands." But it was held that the sale should not bind him, "for there is a difference between this sale and delivery upon an elegit to the party himself, and a sale to a stranger upon a fieri facias, for the fieri facias gives authority to the sheriff to sell and to bring the money into court; wherefore, when he sells a term to a stranger, although the execution be reversed, yet he shall not by virtue thereof be restored to the term, but to.the monies, because he comes duly thereto by act in law. But the sale and delivery of the lease to the party himself upon an elegit, is no sale by force of the writ delivered in extent, which, being reversed, the party shall be restored to the ermt itself." This distinction is recognized by numerous earlier and later authorities. Bacon's Ab. Tit. Execution (Q), and cases there cited.

In Duncan vs. Kirkpatrick and another, 13 S. & R., 294, this subject was fully discussed, and the conclusion reached by the court was clearly stated by Gibson, 0. J., as above announced; indeed, he goes so far as. to hold that an action of assumpsit cannot be maintained upon an express or implied promise to pay the amount of a judgment rendered against the party, " because the plaintiff would thus be permitted to turn the judgment into a simple contract debt."

It is true that we have allowed an action upon the bond...