Aycock et al. v. Austin, sheriff, for use

Supreme Court of Georgia1891-07-13

87 Ga. 566

Summary · law.co

Holding. The judgment was affirmed. The trial court properly permitted joinder of the two bonds and properly refused to instruct the jury that third-party claims to the property relieved the defendants of their obligation to deliver the cotton under the bonds.

Reynolds obtained judgments against W. T. Aycock and against both W. T. and L. P. Aycock. The sheriff levied on 3,000 pounds of seed cotton in the field, and Aycock gave two bonds with Almand as surety to guarantee the cotton would be produced on the day of sale. When Aycock failed to deliver the cotton as promised, the sheriff sued on the bonds to recover its value for Reynolds' benefit. At trial, two third parties filed competing claims to the cotton, but the court properly rejected the defendants' argument that these claims relieved them of their obligation under the bonds.

The defendants challenged the judgment on several grounds, including that the two bonds should not have been joined in a single action and that the sheriff's acceptance of the third-party claims barred recovery on the bonds. The appellate court found no error. Because Aycock and Almand signed both bonds and both were payable to the sheriff, they constituted contracts between the same parties and could be properly joined. The filing of third-party claims and the sheriff's acceptance of them did not excuse the defendants' failure to deliver the cotton on the agreed date—the bonds' condition had been breached regardless of competing ownership claims.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether two bonds between the same parties with the same payee could be joined in one action
Whether third-party claims to levied property discharge the obligors' duty to produce the property under a forthcoming bond
Whether the sheriff's acceptance and return of claim affidavits to court extinguished liability on the bonds

Procedural posture

The defendants appealed from a judgment entered on a jury verdict in favor of the sheriff suing on forthcoming bonds, after the trial court overruled their motion for a new trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, Justice.

It appears from the record that Reynolds obtained a judgment against W. T. Aycock, and also a judgment against W. T. Aycock and his wife, L. P. Aycock. Upon these judgments executions were issued and levied upon 3,000 pounds of seed-cotton in the field. Aycock, desiring to keep possession of the cotton, gave the sheriff two bonds, with Almand as security, for the forthcoming of the property on the day of sale. The sheriff advertised the cotton for sale, and on the day of sale Aycock failed to produce the cotton. On the same day two claim affidavits were filed by Almand and George, in which they alleged that the cotton was not the property of Aycock, but their property. These claims the sheinff accepted and returned to the proper court. The cotton not having been pi-oduced by Aycock as agreed in his bonds, the sheriff brought suit on the bonds for the use of Reynolds, the plaintiff in execution. On the trial of the case the jury returned a verdict for the plaintiff, and the defendant made a motion for a new tidal, which was overruled, and he excepted. There are several grounds in the motion complaining that the court admitted evidence over the objection of the defendants, but the grounds of objection are not stated in any of them, and we therefore decline to notice them.

One of the grounds relied upon by the plaintiffs in error for a reversal of the judgment of the court below was, that the court erred in admitting the two ji. fas. in evidence, because there was a misjoinder of causes of action. There was no error in overruling the motion for a new trial upon this ground. Aycock and Almand signed both bonds, and both were made payable to Austin. They were therefore two contracts between the same parties. The code, §3261, allows all causes of action of a like kind between the same parties to be joined in one action.

The defendant requested the court to charge that “If the jury believes from the evidence that the sheriff, Austin, received claims filed tó the levies made by him to the property described in the levies, as shown by the entries on the ji. fas., and returned the same to the court for trial of the rights of property, then plaintiff cannot recover in this action, and it will be your duty to find for the defendants.” The refusal of the court to give this in charge is one of the grounds of the motion for a new trial. The court did right in refusing to instruct the jury as requested. The defendants obligated themselves to deliver the cotton to the sheriff on the day of sale. When that day arrived, and they failed or refused to deliver the cotton, there was a breach of the bonds. The fact that a third party on the same day filed a claim to the cotton did hot release Aycock and Almand from their obligation to deliver the cotton to the sheriff ou that day, nor did the fact that the sheriff accepted the claims and returned them to court release them. Wheu the condition of the bonds was broken, the sheriff had the right to commence his action thereon, and to recover the value of the cotton for the use of the plaintiff iwfi.fa. When he recovers the money, it will be his duty to hold the same until the claim cases are disposed of.

It was argued before us that the plaintiff could not recover interest on the forthcoming bond. Whether that is so or not we will not decide, because it does not appear that the attention of the trial judge was called to this question. Judgment affirmed.