Opinion
41546.
ARGUED SEPTEMBER 8, 1965.
DECIDED SEPTEMBER 22, 1965.
Foreclosure, etc. Fulton Civil Court. Before Judge Webb.
Linus L. Zukas, for plaintiff in error.
Peek, Carr, Whaley Blackburn, Glenville Haldi, contra.
This was a proceeding instituted by the General Guaranty Insurance Company on March 29, 1965, to foreclose a chattel mortgage, the subject property being found in the possession of a third party, Land-Wilson Motors, and levied upon. A pleading, styled as an "affidavit of illegality," but being in fact a claim of title to the subject property, was filed upon by Land-Wilson Motors, a partnership, it being alleged therein by the affiant partners that they "have just completed a successful defense of their right and title to this property in a trover action instituted by this same plaintiff against affiants, the same being Case No. 948,703 in the Civil Court of Fulton County, and the final order granting your affiant's motion for summary judgment was signed by the Honorable James E. Webb on the 26th day of March, 1965."
The plaintiff insurance company filed a motion to dismiss this claim on the ground that no replevy bond had been filed by Land-Wilson Motors as required by Code § 67-803. This motion was denied and the claim was sustained with direction that the subject property be returned to Land-Wilson Motors. The exception is to that judgment as being contrary to law because of the alleged error in the antecedent ruling denying the motion to dismiss. Held:
The provisions of Code §§ 67-801, 67-803 relate to the filing of an affidavit of illegality and replevy bond by the mortgagor or his special agent, and have no application where as here a claim is filed by a third person not a party to the execution. The record shows that Land-Wilson Motors filed a third party claimant's bond as provided for in Code § 39-802, and it was not necessary to file a forthcoming bond since possession of the property was surrendered upon levy. Code § 39-804.
The trial court did not err in denying the motion to dismiss and in entering final judgment for the defendant in error.
Judgment affirmed. Felton, C. J., and Deen, J., concur.