Thomas v. Price

• Decision Date: 15 February 1892
• Citation: 15 S.E. 11,88 Ga. 533
• Parties: THOMAS v. PRICE.
• Court: Georgia Supreme Court

15 S.E. 11

88 Ga. 533

THOMAS v. PRICE.

Supreme Court of Georgia

February 15, 1892

Syllabus by the Court.

1. After a plaintiff in bail trover is nonsuited the defendant is entitled, upon motion, to judgment on the bond given by the plaintiff to acquire possession of the property under the bail process, according to section 3420 of the Code.

2. To a writ of error from the judgment denying such motion the security on the bond is not a necessary party, he being represented by his principal.

Error from superior court, Bibb county; A. L. MILLER, Judge.

Trover by George C. Price against Luke Thomas. After plaintiff was nonsuited, and judgment of dismissal entered, defendant moved for a judgment of restitution against plaintiff. Motion was denied, and defendant brings error. Reversed.

L. D Moore, for plaintiff in error.

Depau & Bartlett, for defendant in error.

SIMMONS J.

1. Property seized under bail process in trover having been turned over to the plaintiff upon his giving the required bond, the defendant, after the plaintiff was nonsuited, and a judgment of dismissal entered, moved for a judgment of restitution against the plaintiff and his surety, electing to enter judgment for the value of the property as recited in the bond. The motion was denied by the court on the ground that the nonsuit was granted upon the defendant's motion and this is the ruling excepted to. In support of this ruling it was argued that the defendant could have gone to the jury and had a verdict, and that to terminate the case by a dismissal upon his own motion took away the power to enter judgment on the plaintiff's bond. We think the defendant should have been allowed to enter judgment upon the bond. No verdict was necessary to entitle him to restitution of the property or its value. The dismissal alone, as was held in Marshall v. Livingston, 77 Ga. 21, amounted in law to a judgment of restitution, and ipso facto entitled the defendant to a writ of restitution or to a writ of fieri facias for the value of the property against the plaintiff and his surety upon the bond. Though in that case the dismissal was at the instance of the plaintiff this result was not confined to such cases, but was said to follow "where the plaintiff fails in his suit." We do not see why the dismissal should differ in its effect because granted at the instance of the defendant. It must in any event follow, where the plaintiff fails in the...