I concur in the judgment of reversal and in Judge Felton's opinion, not only on the grounds stated by him, but on the further grounds, as follows: This is not a suit by the seller against the purchaser to recover under the contract of sale, although the petition purports to allege a breach of the contract by the purchaser and an indebtedness by him under the contract. This is a suit by the seller against the sheriff only, and is in the nature of a money rule in which the plaintiff does not seek any judgment against the sheriff, but asks only that the sheriff be directed to pay to the plaintiff the proceeds of the automobile which had come into the sheriff's hands by virtue of a sale by him under a "short order" pursuant to the Code, § 107-204, in a trover suit for the automobile which had been brought by the plaintiff as seller against the purchaser. In the trover suit the plaintiff failed to prevail, and a verdict and judgment for the defendant were rendered. See the report of this case in61 Ga. App. 882 (8 S.E.2d 402), where this judgment was affirmed by this court. In the present suit the purchaser is not a party defendant. He appears only as a claimant to the fund in the hands of the sheriff, derived from the sale of the automobile pursuant to *Page 484 the trover suit. There has been no adjudication in the trover suit that either the automobile or the fund derived from the sale thereof in the hands of the sheriff belongs to the plaintiff. In so far as it appears from the trover proceedings, it has been adjudicated that the plaintiff is not entitled to the automobile or to the fund derived from its sale by the sheriff. Therefore, the plaintiff, in so far as his rights may have been determined in the trover suit, is not entitled to the fund. It is only upon an adjudication of the rights of the parties in the proceedings under which the sheriff obtained the fund that the rights of the parties to the fund can be determined in this proceeding for a rule against the sheriff for the direction of a distribution of the fund.
Assuming that under the pleadings and the evidence it appears that the purchaser had breached the contract of sale and was indebted to the seller in an amount equal to the amount of the fund in the hands of the sheriff, can the present proceedings, with the seller and the purchaser and the sheriff as parties, be treated as a suit by the seller against the purchaser to recover for a breach of the contract, in which the sheriff stands in the nature of an interpleader? The plaintiff seller prays for no relief against the purchaser. It prays for no judgment against the purchaser under the contract. The plaintiff prays only that the fund in the hands of the sheriff be paid to the plaintiff. The purchaser was not made a defendant, but by way of intervention filed a claim to the fund, and, by answering the other allegations of the plaintiff, denied that the plaintiff had any right to recover under the contract. The only judgment rendered in the case was one in favor of the plaintiff, the seller, directing that the money in the hands of the sheriff be paid to the plaintiff. This judgment reads as follows: "After the introduction of evidence it is ordered and adjudged that the fund in the hands of the sheriff is the right and property of the C. I. T. Corporation, and the sheriff is ordered to pay the same over to it." Other than this judgment there is no judgment whatsoever against the purchaser adjudicating any indebtedness by him to the plaintiff seller under the contract. No judgment in personam was rendered against the sheriff. The only judgment rendered is an adjudication as to the title to the fund in the hands of the sheriff. This judgment amounts to no judgment against the purchaser, except so far as it is a judgment disallowing the *Page 485 purchaser's claim to the fund. It is not a judgment finding for the seller against the purchaser, adjudicating an indebtedness by the purchaser to the seller. The judgment rendered can be construed only as a judgment disposing of the fund in the hands of the sheriff, derived by him from the sale of the property pursuant to the suit in trover, which had been filed by the seller against the purchaser, and in which it was adjudicated that the plaintiff seller had no right to prevail. The judgment is based upon a determination only as to the rights of any party to the fund by virtue of the adjudication in the trover suit. The court erred in awarding the fund to the seller.