O.C.G.A. § 18-3-10 (2019)
Bond requirements generally
No writ of attachment shall issue unless accompanied by a bond with good security, conditioned to pay the defendant all costs and damages that he may sustain in consequence of the issuance of the writ of attachment in the event that the amount claimed to be due was not due, that no lawful ground for issuance of the attachment existed, or that the property sought to be attached was not subject to attachment. The bond shall be in a sum equal to twice the amount claimed due in the plaintiff’s application. The bond shall be presented to the clerk of the court where the application provided for in Code Section 18-3-9 is sought to be filed for approval by such clerk prior to filing of the writ of attachment.
History
Laws 1833, Cobb’s 1851 Digest, p. 83; Ga. L. 1855-56, p. 25, § 3; Code 1863, § 3190; Code 1868, § 3201; Code 1873,
§ 3266; Code 1882, § 3266; Ga. L. 1892, p. 56, § 1; Civil Code 1895, § 4512; Civil Code 1910, § 5057; Code 1933, § 8-111; Ga. L. 1980, p. 1065, § 2.
Annotations
JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION FAILURE TO GIVE ATTACHMENT BOND LIABILITY ON ATTACHMENT BOND RECOVERY ON ATTACHMENT BOND General Consideration Requirements of former Code 1933, § 8-111 were mandatory and prerequisite to issuance of attachment. Powell v. Stinson’s Garage, Inc., 97 Ga. App. 613, 103 S.E.2d 580, 1958 Ga. App. LEXIS 841 (1958). Principal cannot be surety to the principal’s own bond. Bonds v. Powl, 140 Ga. App. 140, 230 S.E.2d 133, 1976 Ga. App. LEXIS 1375 (1976). President of corporation may be surety for the corporation. Levin v. American Furn. Co., 133 Ga. 670, 66 S.E. 888, 1909 Ga. LEXIS 301 (1909). Notary public, who was attorney for plaintiff, cannot take bond required by former Code 1868, § 3201. Wilkowski v. Halle, 37 Ga. 678, 1868 Ga. LEXIS 36 (1868). Security must also be of twice the value of the debt. Lockett v. DeNeufville, 55 Ga. 454, 1875 Ga. LEXIS 449 (1875). Amount of interest due on debt may be disregarded. Saulter v. Butler, 10 Ga. 510, 1851 Ga. LEXIS 135 (1851). Failure to Give Attachment Bond Bond requirement of this statute was jurisdictional and noncompliance rendered attachment null and void. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191, 1937 Ga. LEXIS 584 (1937). Requirement that plaintiff in attachment give specified bond is jurisdictional, and its absence renders proceeding fatally defective. Tapley v. Proctor, 150 Ga. App. 337, 258 S.E.2d 25, 1979 Ga. App. LEXIS 2301 (1979). Financial inability to give attachment bond renders proceeding seeking attachment fatally defective. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191, 1937 Ga. LEXIS 584 (1937).
Mere financial inability to furnish bond required affords no lawful basis for equitable interference. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191, 1937 Ga. LEXIS 584 (1937). Liability on Attachment Bond Liability of surety on statutory bond. - See United States Fid. & Guar. Co. v. Luttrell, 110 Ga. App. 325, 138 S.E.2d 457, 1964 Ga. App. LEXIS 618 (1964). Extent of liability. - Under statutory bond required of the plaintiff in attachment, the defendant cannot recover from the principal and surety thereon for damage other than such as proximately results from seizure of the defendant’s property under such attachment. Dunn & McCarthy, Inc. v. Pinkston, 54 Ga. App. 92, 187 S.E. 175, 1936 Ga. App. LEXIS 460 (1936). Liability for wrongful attachment. - Fact that attachment is irregular or void will not screen the plaintiff in attachment or surety on attachment bond from liability for damages resulting from wrongful attachment, levy, and sale of the defendant’s property thereunder. United States Fid. & Guar. Co. v. Luttrell, 110 Ga. App. 325, 138 S.E.2d 457, 1964 Ga. App. LEXIS 618 (1964). Recovery on Attachment Bond Conditions necessary to recovery on attachment bond. - Only conditions necessary to recovery on bond are failure on the part of the plaintiff to recover in the case and sustaining by defendant of damages or costs in consequence of the suing out of attachment. No question of malicious use or abuse of legal process or other additional element necessary for a recovery in tort is involved. United States Fid. & Guar. Co. v. Luttrell, 110 Ga. App. 325, 138 S.E.2d 457, 1964 Ga. App. LEXIS 618 (1964).
Seizure of defendant’s property is a prerequisite to action on attachment bond. Massachusetts Bonding & Ins. Co. v. United States Conservation Co., 31 Ga. App. 716, 122 S.E. 728, 1924 Ga. App. LEXIS 149 (1924). Recovery on statutory bond permitted if any property wrongfully seized belongs to defendant in attachment, although some of the property does not. United States Fid. & Guar. Co. v. Luttrell, 110 Ga. App. 325, 138 S.E.2d 457, 1964 Ga. App. LEXIS 618 (1964). Plaintiff’s failure as condition precedent. - Failure of the plaintiff to recover in attachment is condition precedent to recovery on statutory bond. M & M Transf. Co. v. Auto Rental & Leasing, Inc., 313 F. Supp. 907, 1970 U.S. Dist. LEXIS 11457 (N.D. Ga. 1970).
Action on attachment bond will lie without preliminary recovery against plaintiff. Fourth Nat’l Bank v. Mayer, 96 Ga. 728, 24 S.E. 453, 1895 Ga. LEXIS 160 (1895). Compensatory damages, including attorney’s fees, interest, and expenses are recoverable in action on attachment bond, but not exemplary damages, which can only be recovered by common-law action. Fourth Nat’l Bank v. Mayer, 96 Ga. 728, 24 S.E. 453, 1895 Ga. LEXIS 160 (1895). Recovery unavailable against surety for attorney’s fees for prosecuting suit on attachment bond against the surety. United States Fid. & Guar. Co. v. Luttrell, 108 Ga. App. 606, 134 S.E.2d 77, 1963 Ga. App. LEXIS 718 (1963).
RESEARCH REFERENCES Am. Jur. Pleading and Practice Forms. 2C Am. Jur. Pleading and Practice Forms, Attachment and Garnishment, §§ 385, 452. ALR. Liability on attachment bond as affected by lack of levy or by invalid levy, 108 A.L.R. 917.
Recovery of value of use of property wrongfully attached, 45 A.L.R.2d 1221. Right to recover attorney’s fees for wrongful attachment, 65 A.L.R.2d 1426. What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment, 61 A.L.R.3d 984.