O.C.G.A. § 44-12-171 (2019)

Annotations

JUDICIAL DECISIONS The law entertains an impartial reciprocity of protection as to the rights of the plaintiff and defendant. McLaurin v. Henry, 90 Ga. App. 864, 84 S.E.2d 713, 1954 Ga. App. LEXIS 835 (1954). Under the doctrine of reciprocity of protection, a recognizance given by either party should not be deemed a substitute for the property, and the giving or not giving of a bail bond should not affect the rights of the parties as to other features of the case. McLaurin v. Henry, 90 Ga. App. 864, 84 S.E.2d 713, 1954 Ga. App. LEXIS 835 (1954). Failure of plaintiff to recover means failure to recover on the merits of plaintiff’s cause. Futch v. Automobile Fin., Inc., 89 Ga. App. 634, 80 S.E.2d 697, 1954 Ga. App. LEXIS 532 (1954). Either party prevailing in bail trover proceedings has the same right of election as to whether the party will recover damages, the value of the property, or the property and its hire. McLaurin v. Henry, 90 Ga. App. 864, 84 S.E.2d 713, 1954 Ga. App. LEXIS 835 (1954). Under O.C.G.A. § 44-12-171, when the plaintiff has replevied the property and on the trial of the case fails to recover or dismisses the petition, the defendant has the same remedy, that is, of recovering the property and its hire or the sworn value thereof according to the petition. McLaurin v. Henry, 90 Ga. App. 864, 84 S.E.2d 713, 1954 Ga. App. LEXIS 835 (1954). If a defendant prevails and elects to take the property and its hire, defen-

dant is entitled to hire during the time the property is in the sheriff’s possession where it is levied upon under bail process and not replevied by either party. McLaurin v. Henry, 90 Ga. App. 864, 84 S.E.2d 713, 1954 Ga. App. LEXIS 835 (1954). If plaintiff fails in proceeding, all rights acquired by virtue of proceeding must fall with it. Stewart v. Hasty, 77 Ga. App. 524, 48 S.E.2d 757, 1948 Ga. App. LEXIS 591 (1948). Effect of dismissal of petition. - Although a dismissal may not preclude the plaintiff from gaining possession by another or from establishing a right to the property in some future proceeding, the necessary result is that the plaintiff is not entitled to hold the property under color of a process which no longer subsists. O.C.G.A. § 44-12-171 places the property back into the defendant’s hands or requires the plaintiff to pay over its value. Stewart v. Hasty, 77 Ga. App. 524, 48 S.E.2d 757, 1948 Ga. App. LEXIS 591 (1948). Dismissal obtained by fraud or mutual mistake of law. - Although the defendant in an instance of voluntary dismissal by the plaintiff is ordinarily entitled to a restitution judgment ipso facto, where the dismissal is obtained by fraud, or is due to a mutual mistake of law upon the part of the counsels for both parties as to its effect, the only effect of the dismissal would be a mere failure by the plaintiff to recover. Stewart v. Hasty, 77 Ga. App. 524, 48 S.E.2d 757, 1948 Ga. App. LEXIS 591 (1948).

Reinstatement of action. - If, as a result of fraud or a mutual mistake of law, the plaintiff makes a motion during the same term as the original action to reinstate the action for the purpose of having it tried upon its merits, the action will be reinstated. Stewart v. Hasty, 77 Ga. App. 524, 48 S.E.2d 757, 1948 Ga. App. LEXIS 591 (1948). Court lacks authority to reinstate dismissed action. - In the absence of a showing of fraud or of a mutual mistake of law, when a plaintiff voluntarily dismisses a petition, whether for good or bad reason, the court has no authority or discretion, over objection by defendant, to reinstate the action. Stewart v. Hasty, 77 Ga. App. 524, 48 S.E.2d 757, 1948 Ga. App. LEXIS 591 (1948). Judgment of dismissal is judgment for restoration of property. - When the plaintiff brings an action of bail trover and neither party replevies the property which remains in custodia legis, and the plaintiff dismisses the action, a judgment of dismissal is, in effect, a judgment for the restoration of the property. Household Fin. Corp. v. Pugmire Lincoln-Mercury, Inc., 123 Ga. App. 428, 181 S.E.2d 292, 1971 Ga. App. LEXIS 1252 (1971). Petition, is fatally defective if it fails to allege that the plaintiff in the trover action had replevied the property, or that the plaintiff had dismissed the action or failed to recover on the merits. Futch v.

Automobile Fin., Inc., 89 Ga. App. 634, 80 S.E.2d 697, 1954 Ga. App. LEXIS 532 (1954). Even if the defendant elects to take a money verdict for the value of the property, defendant will not be entitled to it where, in defendant’s sworn petition, the plaintiff did not allege the separate value of the property recovered by the defendant and the jury made no finding as to its value. Betts v. Mathews, 72 Ga. App. 678, 34 S.E.2d 729, 1945 Ga. App. LEXIS 670 (1945). If the defendant fails to replevy the property when taken and seized by the sheriff, that officer is required to deliver it to the plaintiff, or the plaintiff’s attorney or agent, upon the plaintiff’s entering into like recognizance with security. Marshall v. Livingston, 77 Ga. 21, 1886 Ga. LEXIS 273 (1886). Presumption created when defendant fails to take verdict for property value. - Where defendant did not elect to take a verdict for the sworn value placed upon the property in the petition, and the verdict was for the defendant for some of the property, the presumption is that defendant so elected to take the property, and if defendant did not so elect before judgment, defendant waives the right by not speaking and having the verdict corrected before the jury dispersed. Betts v. Mathews, 72 Ga. App. 678, 34 S.E.2d 729, 1945 Ga. App. LEXIS 670 (1945).

RESEARCH REFERENCES ALR. Previous demand as a condition of replevin or trover against innocent purchaser of stolen chattels, 51 A.L.R. 1465. Judgment in replevin as implying a direction for return of property, 65 A.L.R. 1302; 144 A.L.R. 1149. Right of one joint owner of personal property to maintain against third person replevin, detinue, trover, or other action

recover possession or damages, 110 A.L.R. 353. Setoff, counterclaim, and recoupment in replevin or other action for possession of personal property, 151 A.L.R. 519. Voluntary dismissal of replevin action by plaintiff as affecting defendant’s right to judgment for the return or value of the property, 24 A.L.R.3d 768.

ARTICLE 5 DISPOSITION OF UNCLAIMED PROPERTY Cross references. Archeological exploration, excavation, or surveying, § 12-3-52. Submerged cultural resources, § 12-380. Disposition of abandoned motor vehicles, § 40-11-1 et seq. Editor’s notes. Ga. L. 1990, p. 1506, § 1, effective July 1, 1990, repealed the Code sections formerly codified in this article and enacted the current article. The former article consisted of Code Sections 44-12-190 through 44-12-222 and was based on Ga.

L. 1972, p. 762, §§ 1 through 31 and § 33; Ga. L. 1976, p. 203, § 1; Ga. L. 1976, p. 556, § 1; Ga. L. 1981, p. 977, §§ 1 and 3; Ga. L. 1981, p. 1330, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 1982, p. 1787, §§ 1, 2; Ga. L. 1984, p. 517, § 1; Ga. L. 1984, p. 575, §§ 1 through 5; Ga. L. 1985, p. 149, § 44; Ga. L. 1985, p. 283, § 1; Ga. L. 1985, p. 912, § 1; Ga. L. 1985, p. 1097, §§ 1, 2; Ga. L. 1986, p. 10, § 44; Ga. L. 1987, p. 541, § 1; Ga. L. 1989, p. 14, § 44; Ga. L. 1989, p. 946, § 111, and Ga. L. 1989, p. 1115, §§ 1 through 3.

RESEARCH REFERENCES Am. Jur. 2d. 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property, §§ 1 et seq., 6. 27 Am. Jur. 2d, Escheat, § 1 et seq. C.J.S. 1 C.J.S., Abandonment, § 1 et seq. 30A C.J.S., Escheat, § 1 et seq.

ALR. Constitutionality, construction, and application of statutes relating to disposition of old bank deposits, 151 A.L.R. 836. Validity, construction, and application of lost or abandoned goods statutes, 23 A.L.R.4th 1025.