Turner v. Camp

• Decision Date: 11 April 1900
• Citation: 36 S.E. 76,110 Ga. 631
• Parties: TURNER et al. v. CAMP, Sheriff.
• Court: Georgia Supreme Court

36 S.E. 76

110 Ga. 631

TURNER et al. v. CAMP, Sheriff.

Supreme Court of Georgia

April 11, 1900

Syllabus by the Court.

1. A levying officer to whom a forthcoming bond has been given may in his own name sue for a breach thereof, and it is not improper for him to designate in his petition, as usee, the plaintiff in the execution levied.

2. While a defendant in an action may before its final termination bring to this court for review a decision overruling a demurrer to the plaintiff's petition because the "judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause," such defendant cannot, in a bill of exceptions sued out in such a case, properly except also, to a decision striking his answer, or a portion thereof.

Error from city court of Floyd county; George A. H. Harris, Judge.

Action by J. E. Camp, sheriff, for the use of the Merchants' National Bank of Rome, against J. D. Turner and others. Judgment for plaintiff, and defendants bring error. Affirmed.

M. B Eubanks, for plaintiffs in error.

Wright & Ewing and Nat Harris, for defendant in error.

LEWIS J.

J. E Camp, as sheriff of Floyd county, for the use of the Merchants' National Bank of Rome, brought suit against the defendants for the breach of a forthcoming bond given by J. D. Turner, Harry Rawlins, and D. B. Hamilton, Jr., to said sheriff; reciting that the latter had levied a certain fi fa., in favor of the Merchants' National Bank of Rome, Ga., against J. D. Turner principal, and J. P. McConnell, security, on certain property (describing it). The bond contained an obligation to deliver the property to the sheriff at the time and place of sale. To this petition the defendants demurred on the ground that there was a misjoinder of parties; that the bank was not a proper party of the case; that there was no assignment of the bond to the bank; that there was no privity between the sheriff and the bank; that there was no liability to the bank on the bond, which was taken to protect the sheriff, and not for the benefit of the plaintiff in fi. fa. This demurrer was overruled by the court. To the petition the defendants filed an answer, which, under the view we take of this case, it is unnecessary to set forth, and to this answer plaintiff filed a demurrer upon several grounds. This demurrer was partially sustained by the court, striking certain paragraphs of the...