When an execution is levied on personal property and an affidavit of illegality is filed thereto and the party filing the illegality desires to take or keep possession of the property, he shall deliver to the sheriff or other levying officer a bond payable to the levying officer, with good security in a sum equal to double the value of the property so levied upon, to be judged of by the levying officer, conditioned for the delivery of the property levied upon at the time and place of sale in the event that the illegality is dismissed by the court or withdrawn, which bond shall be recoverable in any court having cognizance thereof.
(Orig. Code 1863, § 3598; Code 1868, § 3622; Code 1873, § 3672; Code 1882, § 3672; Civil Code 1895, § 5435; Civil Code 1910, § 6040; Code 1933, § 39-301.)
Law reviews.- For note discussing legal and equitable relief from execution available to debtors, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
Former Civil Code 1910, § 6040 (see now O.C.G.A. § 9-13-126) prescribed requirements of forthcoming bond which may be filed to affidavit of illegality interposed, under former Civil Code 1910, § 5305 (see now O.C.G.A. § 9-13-120), to an execution against personalty. Dawson v. Planters' Bank, 31 Ga. App. 530, 121 S.E. 242 (1924).
Bond should be payable to levying officer. Dawson v. Planters' Bank, 31 Ga. App. 530, 121 S.E. 242 (1924).
No bond is required when execution is against realty. Murphey v. Smith, 16 Ga. App. 472, 85 S.E. 791 (1915).
It is optional with defendant to file bond, and a failure to do so will not affect the defendant's rights concerning the questions raised by the affidavit. Herring v. Saulsbury, Respess & Co., 52 Ga. 396 (1874); Wynn v. Knight, 53 Ga. 568 (1874); Crayton v. Fox, 100 Ga. 781, 28 S.E. 510 (1897); Humphreys v. Avery & Co., 28 Ga. App. 787, 113 S.E. 49 (1922).
When personal property is levied upon under a process of the court, it is optional with the defendant to exercise the right given the defendant by law to take possession of the property by giving the required bond. Rogers v. Echols, 50 Ga. App. 711, 179 S.E. 131 (1935).
Owner of personal property levied on who has given bond to replevy is not required to pay costs, including the expense of keeping the property while the property is under levy and in the possession of the levying officer as a condition precedent to obtaining possession of the property from the levying officer. Rogers v. Echols, 50 Ga. App. 711, 179 S.E. 131 (1935).
Levying officer not bailee when defendant refuses to accept property after bond posted.
- When the defendant has given the required bond which entitles the defendant to possession of the property and the bond has been approved and accepted by the levying officer, and the property is tendered to the defendant, the defendant may, notwithstanding, refuse to accept and take possession of the property, and the property while continuing in the possession of the levying officer is in the officer's possession by virtue of the levy and in the officer's capacity as levying officer; the officer does not, by the defendant's refusal to accept the property, hold the property as bailee or agent for the defendant. Rogers v. Echols, 50 Ga. App. 711, 179 S.E. 131 (1935).
Cited in Wade v. Wortsman, 29 F. 754 (S.D. Ga. 1887); Small Equip. Co. v. Walker, 126 Ga. App. 827, 192 S.E.2d 167 (1972).
RESEARCH REFERENCES
Am. Jur. 2d.
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 209 et seq.
C.J.S.- 33 C.J.S., Executions, § 288 et seq.
ALR.
- Right of obligor in action on forthcoming bond or receipt for return of property seized under process to set up title in himself, 37 A.L.R. 1402.