Opinion
40614.
DECIDED APRIL 7, 1964.
Complaint. Tattnall Superior Court. Before Judge Durrence.
Dan S. Cowart, for plaintiff in error.
B. D. Dubberly, Sr., contra.
"[W]here the grounds of attachment fail, the replevy bond, in so far as it is sought to bind the sureties thereon, fails also. In such event there is no liability of the sureties on the bond, but their remedy is by affidavit of illegality. . ." Patne v. Oliver, 96 Ga. App. 644, 647 ( 101 S.E.2d 154) and citations. Accord: Bruce v. Conyers, 54 Ga. 678 (1); Neal v. Gordon, 60 Ga. 112 (1); Philip Carey Co. v. Sheppard, 19 Ga. App. 368 (2) ( 91 S.E. 444). The trial court properly sustained the surety's affidavit of illegality and that judgment is
Affirmed. Bell, P. J., and Jordan, J., concur.
DECIDED APRIL 7, 1964.
Beasley was one of the sureties on the replevy bond involved in Patne v. Oliver, 96 Ga. App. 644 ( 101 S.E.2d 154). In that case, Beasley's principal appealed an adverse verdict in an attachment case. This court affirmed the verdict for plaintiff holding, inter alia, that the attachment proceeding was converted into one in personam by the defendant filing a replevy bond and making a general appearance in the cause. The court further held that the fact that no ground of attachment was proved by the plaintiff in attachment did not require a reversal even though the attachment verdict was erroneous.
In this case, plaintiff Oliver sought to enforce the fi. fa. in the previous case against the surety Beasley. Beasley resisted by affidavit of illegality. Oliver's general demurrer and motion to dismiss were overruled and the court sustained the affidavit. Plaintiff in fi. fa. excepts.