Oliver v. Beasley., 109 Ga. App. 558, 136 S.E.2d 530 (1964)

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Affirmed. Bell, P. J., and Jordan, J., concur.

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Affirmed. Bell, P. J., and Jordan, J., concur.

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B. D. Dubberly, Sr., contra.Dan S. Cowart, for plaintiff in error.

"[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 SE2d 154) and citations. Accord: Bruce v. Conyers, 96 Ga. App. 644 (101 SE2d 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.

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