Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 8-901 are included in the annotations for this Code section.

Purpose of section.

- Principal of this statute was the same as in garnishment proceedings. Light v. Hunt, 17 Ga. App. 491, 87 S.E. 763 (1916).

Bond required only after levy.

- Bond provided for in this statute was required only after levy of attachment, and not after judgment on attachment against the property. Lafferty Lumber Co. v. Thomas, 37 Ga. App. 226, 139 S.E. 587 (1927).

Section not applicable when parties agree otherwise.

- Since no replevy bond was given by the defendant, an agreement between parties that the constable should sell the property on a given date and deliver proceeds of the sale to the sheriff, to be held by the sheriff until final disposition of the case, controls rights of parties, and the provision, allowing the defendant in attachment to replevy the property, did not apply. Hill v. Hixon, 151 Ga. 333, 106 S.E. 551 (1921).

Bond with condition to produce property on day of sale was not within statute. Moody v. Morgan, 25 Ga. 381 (1858).

When defendant gives bond, a general judgment was authorized. Mitchell v. Perry, 145 Ga. 233, 88 S.E. 930 (1916).

One bond given when three attachments are levied will cover judgment in each case. Irvin v. Howard, 37 Ga. 18 (1867).

Failure to state name of firm.

- After giving replevy bond, firm cannot request dismissal for failure to state name of firm. DeLeon v. Heller, Hirsch & Co., 77 Ga. 740 (1886).

Liability of officer for noncompliance with duties.

- Ford & Booth v. Perkerson, 59 Ga. 359 (1877).

Cited in Rogers v. Moore, Jenkins & Co., 40 Ga. 386 (1869); Walker v. Walker, 42 Ga. 141 (1871); Wilson v. Danforth, 47 Ga. 676 (1873); Nagle v. Lumpkin, 48 Ga. 521 (1873); Moore, Jenkins & Co. v. Allen, 55 Ga. 67 (1875); Chittenden v. Darden, 5 F. Cas. 642 (N.D. Ga. 1875); Reeves v. Chattahoochee Brick Co., 85 Ga. 477, 11 S.E. 837 (1890); Henry v. Lennox-Haldeman Co., 116 Ga. 9, 42 S.E. 383 (1902); Rutland v. Hill, 19 Ga. App. 528, 91 S.E. 922 (1917); Blakely Milling & Trading Co. v. Thompson, 34 Ga. App. 129, 128 S.E. 688 (1925); Courson v. Manufacturers' Fin. Acceptance Corp., 41 Ga. App. 551, 153 S.E. 624 (1930); Henley v. Colonial Stages S., Inc., 56 Ga. App. 722, 193 S.E. 905 (1937); Johnson v. American Credit Co., 581 F.2d 526 (5th Cir. 1978).

Effect of replevy bond.

- When property attached has been replevied, attachment is dissolved, bond is substituted for property, and the case stands as if the case had been founded on ordinary principles. Thompson v. Wright, 22 Ga. 607 (1857); Camp v. Cahn, 53 Ga. 558 (1875); Walter v. Kierstead, 74 Ga. 18 (1884); Woodbridge v. Drought, 118 Ga. 671, 45 S.E. 266 (1903); Watters v. Southern Fixture & Cabinet Co., 13 Ga. App. 468, 79 S.E. 360 (1913).

Action is in personam.

- Replevy bond converts suit from action in rem to action in personam authorizing a common-law judgment. Middlebrooks v. Carson, 23 Ga. App. 665, 99 S.E. 151 (1919).

Replevy bond, in converting action in rem to one in personam, is equivalent to appearance. Ubico Milling Co. v. Poythress, 29 Ga. App. 134, 113 S.E. 815 (1922).

When defendant in attachment personally appears, replevies property attached, and defends action on its merits, the case proceeds in all respects as an ordinary action in personam and, accordingly, when there was no evidence to support single ground of attachment alleged, and traverse to attachment was well taken, this was not ground for a new trial or for setting aside judgment entered against defendant on the merits. Patne v. Oliver, 96 Ga. App. 644, 101 S.E.2d 154 (1957) (decided under former Code 1933, § 8-901).

Replevy bond binds defendant not only to appear, but to pay judgment, if rendered against the defendant. Cole v. Reilly, 28 Ga. 431 (1859).

Dismissal as to principal on ground of bankruptcy or death.

- Since liability of sureties depends upon that of principal, if principal is discharged on ground of bankruptcy or death, case should be dismissed as a whole. Langston v. Watts, 142 Ga. 439, 83 S.E. 92 (1914).

If, upon levy of attachment for purchase-money, defendant replevies property by giving bond and security as provided in former Civil Code 1910, § 5113, and if within four months after levy of such attachment, the defendant is adjudicated a bankrupt, the lien of attachment is void, and the principal debtor and surety on replevy bond are both discharged. Longshore v. Collier, 37 Ga. App. 450, 140 S.E. 636 (1927).

Rights of plaintiff against sureties on replevy bond are generally the same as against the defendant. McDonald v. W.W. Kimball Co., 144 Ga. 105, 86 S.E. 234 (1915).

When no objection was made to sufficiency of bond sureties not liable for more than amount named in bond. Jones v. Fayette Fertilizer Co., 141 Ga. 32, 80 S.E. 306 (1913).

Bond taken for double the amount levied on sets limit.

- When bond is taken for double the amount of property levied on, and judgment in attachment case is for an amount greater than the bond, judgment should be entered on the bond to the extent of the bond, no more and no less. Wilson & Co. v. Sims, 144 Ga. 685, 87 S.E. 890 (1916).

Surety on replevy bond not necessary party to defendant's appeal of judgment.

- Surety on replevy bond executed by defendant in attachment, where the obligation, which is joint and several, is to pay whatever judgment plaintiff in attachment may obtain against the defendant in attachment, including court costs, is not a necessary and essential party to an appeal by the defendant in attachment from the judgment rendered. Bunn v. Gamble, 54 Ga. App. 417, 188 S.E. 257 (1936).

Sureties on replevy bond posted by the defendant upon attachment of the defendant's property are not necessary or essential parties to appeal following judgment against the defendant and the defendant's sureties. Patne v. Oliver, 96 Ga. App. 644, 101 S.E.2d 154 (1957).

Liability of sureties on appeal.

- Sureties are liable as security upon appeals, notwithstanding loss or destruction of property. Irvin v. Howard, 37 Ga. 18 (1867).

Sureties cannot urge after judgment against the sureties that attachment would not lie against property attached. Craig v. Herring & Turner ex rel. McCandless, 80 Ga. 709, 6 S.E. 283 (1888).

When sheriff, unknown to plaintiff, fraudulently induced sureties to sign, legality of the bond was not affected; redress of sureties is against sheriff. Craig v. Herring & Turner ex rel. McCandless, 80 Ga. 709, 6 S.E. 283 (1888).

Sureties making claim contrary to replevy bond.

- When replevy bond executed by sureties recited that the property levied on was levied on as property of the defendant, the sureties are estopped to deny a valid levy on ground that levy failed to state that property was levied on as property of the defendant. Flegal v. Loveless, 93 Ga. App. 41, 90 S.E.2d 606 (1955).

ALR.

- Voluntary dismissal of repleving action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 2 A.L.R. 200.

Recovery for depreciation of property between the date it was replevied and final judgment, 24 A.L.R. 1189.

Replevin for an undivided share in or undivided quantity of a larger mass, 26 A.L.R. 1015.

Duty to give bond and procure return of property in order to mitigate damages from its wrongful seizure under legal process, 33 A.L.R. 1479.

Liability on bond in replevin as affected by superior title or lien of third person, or seizure thereunder, 36 A.L.R. 1102.

Premium for redelivery bond as item of damages for wrongful attachment, 42 A.L.R. 1057.

Sufficiency of offer or tender to satisfy requirement of judgment or condition of bond in replevin for delivery or redelivery of chattels, 57 A.L.R. 806.

Answering to merits or giving bond for release of attachment as waiver of objections to attachment, 72 A.L.R. 120.

Liability of surety on replevin bond as affected by amendment of pleadings in replevin, 90 A.L.R. 541.

Right of one joint owner of personal property to maintain against third person replevin, detinue, trover, or other action to recover possession or damages, 110 A.L.R. 353.

Recovery of damages in replevin for usable value of property detained, by successful party having only security interest as conditional vendor, chattel mortgagee, or the like, 33 A.L.R.2d 774.

Filing bond to secure release or return of seized property as appearance, 57 A.L.R.2d 1109.

Posting of redelivery bond by defendant in attachment as waiver of damages for wrongful attachment, 57 A.L.R.2d 1376.

Replevin or claim-and-delivery: Modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.