Phillips v. Taber

• Decision Date: 28 October 1889
• Citation: 10 S.E. 270,83 Ga. 565
• Parties: PHILLIPS v. TABER.
• Court: Georgia Supreme Court

10 S.E. 270

83 Ga. 565

PHILLIPS v. TABER.

Supreme Court of Georgia

October 28, 1889

Error from city court of Atlanta; VAN EPPS, Judge.

Broyles & Broyles, for plaintiff in error.

Arnold & Arnold, for defendant in error.

SIMMONS J.

It appears from the record in this case that Theodore S. Taber on the 2d of June, 1887, by his next friend, Mary C. Taber commenced his action of trover against Phillips, for certain personal property mentioned in his declaration; that on the same day he sued out bail process against said Phillips; that on the 3d of June Phillips gave bond and security for the forthcoming of said property, and for the eventual condemnation money which might be assessed against him on the trial of the case. On the 27th of June the sheriff applied to the court for leave to sell the wagon and harness, and one shawl, as perishable property, and stated in his application that the same had not been replevied by Phillips. The order was granted, and he sold the same for $10, which was applied in payment of the costs of the case. On July 27th, Phillips filed a plea of the general issue, which plea was signed by W. R. Hodgson, the defendant's attorney. On February 13 1888, the declaration in trover was amended by striking therefrom the name of Mary C. Taber, who sued as next friend; the amendment alleging that the plaintiff had become of age since the filing of the declaration. The declaration was further amended at the same time by inserting therein the names of Taber's wife, Eva C. Taber, and his child, Frank S. Taber, "said wife and child being the beneficiaries of the homestead estate, of which the property sued for in said action was a part; and the plaintiff sues for the use of said wife and child." On February 18, 1888, service of this amendment was acknowledged, and copy waived by Hodgson, the defendant's attorney. On October 16, 1888, the declaration was further amended by alleging that the hire of the horse claimed was of the value of $15 per month; that Phillips was indebted to the plaintiff in that sum since the date of the conversion of said horse; and that the other articles named in the declaration were of the monthly value of $5 for hire. This amendment does not appear to have been served on the defendant; but no exception was taken to this amendment. On the same day the jury rendered the following verdict: "We, the jury, find for the plaintiff the sum of $126, to be discharged on the delivery of the property in suit within ten days from date, and $246 for rent of the same, and costs of suit." Upon the said verdict, judgment was entered against the defendant and his securities for the amounts found in the verdict. During the same term of said court, the defendant and his two securities moved to set aside said judgment, on the various grounds set out in said motion. The court refused the motion, upon condition that the plaintiff would write off from said judgment, as against the securities, all of said judgment over and above $182, --the amount stipulated in the bond which they signed as securities for Phillips in the bail proceeding. The plaintiff wrote off this amount, and the judgment now stands for $182 against the securities, and the whole amount found against Phillips, the principal in the bond. Phillips and his securities both excepted to this judgment of the court below, and bring the case here for review.

1. The first ground taken by the defendant in his motion was, in substance, that the judgment was illegal, because it was for $246, the hire or rent of said property, when the bail affidavit did not set forth any claim for said rent or hire. While the Code, § 3418, requires a party suing out a bail process to state in his affidavit the value of the property sued for, and the amount of hire claimed, if any, we do not think, if he fails to claim hire in the affidavit, that his failure would prevent him from recovering hire from the time of the commencement of the suit to the rendition of the verdict. It requires the value of the property, and the amount of hire, to be stated in the affidavit, in order to inform the sheriff of the amount at which to fix the replevy bond. If the affidavit only states the value of the property, as it did in this case, the sheriff can only require the bond to be double that amount. If it states the value of the property and the amount of hire claimed, then the sheriff fixes the bond at double the value of the property and the hire claimed; and the plaintiff would be entitled, in a proper case, to recover not only the value of the property, but the hire from the time of the conversion. Where the amount of hire is omitted in the affidavit, he cannot recover the hire from the time of the conversion, but only from the time of filing his affidavit and declaration.

It appears that in this case the recovery for hire was restricted to the time of the filing of the declaration, and was not extended to the time of the conversion of the property. So we see no error in the judgment of the trial judge in overruling the motion upon this ground.

2. The second ground was, in substance, that the judgment was for a sum greater than the penal sum of the bond; the sum mentioned in the bond being $182, and the judgment being for $372. We do not think the plaintiff is restricted in his recovery to the amount mentioned in the bond, so far as the defendant, the principal in the bond, is concerned. It would be a great injustice to plaintiffs in trover cases to restrict them, in their recovery for the rent or hire of property sued for, to the amount claimed in the bail affidavit, or to the penal sum of the bond given to replevy the property. The case might be pending for years, the defendant receiving the benefit of the hire of the property during that time, which might amount to much more than the penal sum mentioned in the bond, and yet, under the construction contended for by the plaintiff in error, the plaintiff in the court below would only be entitled to double the amount of the sum claimed in the bail affidavit. The defendant in a trover case is not liable by reason of having given a bond for the eventual condemnation money, but for the damages in consequence of having converted the plaintiff's property; and he is liable for whatever that property is proved to be worth, and its hire.

3. The third ground alleges, in substance, that the judgment included the amount of $41, for a wagon, harness, and shawl although it was shown upon the trial that said articles had been sold by the sheriff, as perishable property, under the order of the court, before said verdict and judgment were rendered, and the proceeds of said sale applied in payment of the costs and expenses. The trial judge did not err in overruling this ground of the motion for a new trial. While it is true that the articles were sold by the sheriff, and the proceeds applied as alleged in the motion, the record shows that the bond given by the plaintiff in error...