Dasher v. Brannen & Brother

Broyles, C. J.

1. “ The relation of principal and surety continues after judgment in favor of the creditor, against both principal and surety” (Curan v. Colbert, 3 Ga. 239 (3), 46 Am. D. 427), and “any act of the creditor, either before or after judgment against the principal, which injures the surety or increases his risk, or exposes him to greater liability, will discharge him.” Civil Code (1910), § 3544. “When the defendant lias given bond and security as provided in this code, . . the judgment rendered against- him in such ease shall bind all Ms property, . . and execution shall issue accordingly.” (Italics ours.) Civil Code (1910), § 5121.

Decided November 14, 1922.

Adhered to on rehearing, December 14, 1922.

Affidavit of illegality of execution; from city court of Swainsboro — Judge Kirkland. June 19, 1922.

T. N. Brown, F. E. Saffold, for plaintiff in error.

A. 8. Bradley, Anderson cG Trapnell, contra.

2. In the instant case the surety upon a replevy bond filed an affidavit of illegality to the levy of a fi. fa. upon property belonging to him. One ground of the affidavit was’ that the surety was released because certain described personal property of the principal had been carried' outside the county by the plaintiffs in fi. fa., and beyond reach of their judgment, thereby increasing the risk of the surety. Under the foregoing ruling this ground set up a good defense for the surety, and the court erred in striking it on general demurrer.

3. The remaining grounds of the affidavit of illegality were properly stricken on general demurrer.

Judgment reversed.

Luke and Bloodworth, JJ., concur.