Syfert Injury Law Firm
Your Trusted Partner in Personal Injury & Workers' Compensation
Call Now: 904-383-7448Your Trusted Partner in Personal Injury & Workers' Compensation
Call Now: 904-383-7448The person claiming the property levied on, or his agent or attorney, shall give bond to the sheriff or other levying officer, with good and sufficient security in a sum not larger than double the amount of the execution levied, made payable to the plaintiff in execution. Where the property levied on is of less value than the execution, the amount of the bond shall be double the value of the property levied upon, at a reasonable valuation to be judged by the levying officer, conditioned to pay the plaintiff in execution all damages which the jury on the trial of the claim may assess against the person claiming the property in case it appears that the claim was made for the purpose of delay only.
(Laws 1821, Cobb's 1851 Digest, p. 533; Code 1863, §§ 3651, 3654; Code 1868, §§ 3676, 3679; Ga. L. 1872, p. 41, § 1; Code 1873, §§ 3726, 3729; Code 1882, §§ 3726, 3729; Civil Code 1895, §§ 4612, 4615; Civil Code 1910, §§ 5158, 5161; Code 1933, § 39-802.)
Former Code 1933, § 39-802 (see now O.C.G.A. § 9-13-91) made mandatory giving of bond made payable to plaintiff in execution in at least double the amount of the value of the property levied upon, conditioned to pay all damages which the plaintiff may sustain if the jury found that the claim was made for purposes of delay only, but former Code 1933, § 39-807 (see now O.C.G.A. § 9-13-92) provided that a pauper's affidavit may be given if the claimant shall be unable to give the bond and security required. George v. Davison-Paxon Co., 90 Ga. App. 717, 84 S.E.2d 122 (1954).
It is mandatory that claimant either give bond or file pauper's affidavit. Hand v. Frank W. Hall Merchandise Co., 91 Ga. 130, 16 S.E. 644 (1893); George v. Davison-Paxon Co., 90 Ga. App. 717, 84 S.E.2d 122 (1954).
Presumption that claimant has given damage bond required by this section is present when the claim is pending in superior court. Hand v. Frank W. Hall Merchandise Co., 91 Ga. 130, 16 S.E. 644 (1893); Drummond v. Drummond, 71 Ga. App. 474, 31 S.E.2d 74 (1944).
Court will also presume bond given when no objection made as to lack of bond in the trial court and in the absence of a clear showing to the contrary. First Nat'l Bank & Trust Co. v. McElmurray, 120 Ga. App. 134, 169 S.E.2d 720 (1969).
Bond conditioned to pay whatever damages are assessed under former Code 1933, § 39-907 (see now O.C.G.A. § 9-13-105) was valid under former Code 1910, §§ 5158 and 5161 (see now O.C.G.A. § 9-13-91). Mutual Fertilizer Co. v. White & Son, 26 Ga. App. 134, 106 S.E. 19, cert. denied, 26 Ga. App. 801 (1921).
Forthcoming bond under former Code 1868, §§ 3678 - 3680 (see now O.C.G.A. § 9-13-94) cannot be substituted for damages bond under former Code 1868, §§ 3676 and 3679 (see now O.C.G.A. § 9-13-91). Raiford v. Taylor, 43 Ga. 250 (1871).
No attestation or approval of bond for damages is necessary other than acceptance of a properly executed bond by the levying officer. GMAC v. Allen, 59 Ga. App. 614, 1 S.E.2d 705 (1939).
It is no ground for dismissal of claim that damage bonds were not approved or attested by levying officer, or by anyone else. GMAC v. Allen, 59 Ga. App. 614, 1 S.E.2d 705 (1939).
Sheriff is not obligated to accept improperly executed bond for damages. Allen v. Giddens, 118 Ga. App. 755, 165 S.E.2d 606 (1968).
Defective claim bond may be amended. Lee v. Mills, 69 Ga. 740 (1882).
If a claim bond does not conform to this section, the bond may be amended. If the bond be so defective as not to protect the plaintiff in fieri facias and no amendment be offered, the claim will be dismissed. Sabin Robbins Paper Co. v. Wilson, 70 Ga. App. 42, 27 S.E.2d 254 (1943).
- When the purported surety on a bond is a corporation, and its signature is made by one who purports to act as its attorney in fact, the claim is subject to dismissal unless the bond is accompanied by a power of attorney showing the authority of the one purporting to act for the corporation in executing a bond. Sabin Robbins Paper Co. v. Wilson, 70 Ga. App. 42, 27 S.E.2d 254 (1943).
When part of property is found not subject to execution, verdict for damages on bond is improper. Burt v. Lorentz & Rittler, 102 Ga. 121, 29 S.E. 137 (1897).
Security on claim is bound by judgment for damages and costs. Harvey v. Head, 68 Ga. 247 (1881).
Surety may control fi. fa. after payment of damages for the purpose of securing reimbursement from the principal. Keith v. Welchel, 9 Ga. 179 (1850).
- This section applies when property has been levied on under process by a sheriff or other officer and impounded, and not in a garnishment action, since there is no seizure of property under process by an officer. Bryant v. J. Scott Rentals, Inc., 144 Ga. App. 231, 241 S.E.2d 12 (1977).
Cited in Goggins v. Jones, 115 Ga. 596, 41 S.E. 995 (1902); Beeland v. Reynolds Banking Co., 145 Ga. 839, 90 S.E. 46 (1916); Few v. Pou, 32 Ga. App. 620, 124 S.E. 372 (1924); Brooks v. Goette, 52 Ga. App. 408, 183 S.E. 633 (1936); McKenzie v. Bank of Ga., 76 Ga. App. 539, 46 S.E.2d 356 (1948); Gordon v. Commercial Auto Loan Corp., 85 Ga. App. 808, 70 S.E.2d 406 (1952); Associates Disct. Corp. v. Willard, 99 Ga. App. 116, 108 S.E.2d 110 (1959); Hardy v. George C. Murdock Freight Lines, 99 Ga. App. 459, 108 S.E.2d 739 (1959); General Guar. Ins. Co. v. Land-Wilson Motors, 112 Ga. App. 337, 145 S.E.2d 119 (1965); Bankston v. Smith, 134 Ga. App. 882, 216 S.E.2d 634 (1975).
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 295.
- 33 C.J.S., Executions, § 315 et seq.
No results found for Georgia Code 9-13-91.