When the plaintiff in a trover action has replevied the property and on the trial of the case fails to recover or dismisses his petition, the defendant may recover the property and its hire or the sworn value placed upon the property in the petition instead of suing on the replevy bond.

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).

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).

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).

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).

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).

If a defendant prevails and elects to take the property and its hire, defendant 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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

Cited in Briscoe v. Pool, 50 Ga. App. 147, 177 S.E. 346 (1934); Sizemore v. Beeler, 94 Ga. App. 414, 94 S.E.2d 773 (1956); Vann v. American Credit Co., 115 Ga. App. 559, 155 S.E.2d 459 (1967).

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2018 Georgia Code 44-12-171 | Car Wreck Lawyer

TITLE 44 PROPERTY

Section 12. Rights in Personalty, 44-12-1 through 44-12-322.

ARTICLE 4 TROVER

44-12-171. Recovery by defendant in trover action when plaintiff had replevied property.

History of section.