Opinion
44054.
ARGUED NOVEMBER 8, 1968.
DECIDED JANUARY 14, 1969. REHEARING DENIED FEBRUARY 5, 1969.
Action on bond. Fulton Civil Court. Before Judge Webb.
Wendell C. Lindsey, for appellant.
Edwards, Bentley, Awtrey Parker, Fred D. Bentley, Sr., for appellees.
The right of action against a clerk for the acceptance of an insolvent or insufficient surety upon a bond does not accrue until a judgment is rendered on the bond.
ARGUED NOVEMBER 8, 1968 — DECIDED JANUARY 14, 1969 — REHEARING DENIED FEBRUARY 5, 1969 — CERT. APPLIED FOR.
Atlas Supply Company, a materialman, filed a complaint in the Civil Court of Fulton County against Tyre Lee Terry, clerk of Cobb Superior Court, and the United States Fidelity Guaranty Company, the surety on the clerk's bond, seeking to recover $29,364 for the clerk's alleged negligent action in approving a bond given under Code Ann. § 67-2004 (Ga. L. 1953, p. 544). It alleged that: the plaintiff furnished and sold certain materials to Apartment Development, Inc., which were used by it in improving certain described real estate; the value of the materials was $29,364; the plaintiff filed a lien against the property of Apartment Development, Inc.; Apartment Development, Inc., filed a bond to discharge plaintiff's lien under Code Ann. § 67-2004; the bond was signed by Floyd Granger as security and was approved by a deputy clerk who negligently and improperly performed his duty since Floyd Granger was a nonresident of the State of Georgia; the deputy clerk was duly appointed by the clerk Tyre Lee Terry and his negligence is imputable to the clerk.
The defendants filed a motion to dismiss. Thereafter the plaintiff amended its complaint by alleging that Floyd Granger, the security, owned no property in the State of Georgia and was insolvent both at that time and at the time he signed the bond. By further amendment the plaintiff specified with particularity how the action of the clerk had damaged it and alleged facts showing that the sale of the property involved after the clerk had approved the bond resulted in the real estate being discharged from the plaintiff's lien. The defendants filed a further motion to dismiss. This motion came on for hearing and the trial judge entered an order sustaining such motion. Appeal was taken from this judgment.
The sole question presented by this appeal is whether the complaint was filed prematurely where there was no foreclosure of the materialman's lien, no proceeding instituted to recover on the bond given under Code Ann. § 67-2004 and no other action instituted against Apartment Development, Inc., or Floyd Granger to establish the amount of damages to which the plaintiff might be entitled. This court has held in Hartford Acc. c. Co. v. Young, 40 Ga. App. 843 (2) ( 151 S.E. 680) that "the right of action against a sheriff for the acceptance of an insolvent or insufficient surety upon a bond does not accrue until such a judgment has been rendered as will charge the bond, or until the liability of the surety thereon has accrued and an execution has been issued against him and returned unsatisfied." See in this connection Sledge v. Lee, 19 Ga. 411 and Fourth Nat. Bank of Cincinnati v. Mayer, 96 Ga. 728 ( 24 S.E. 453). Under this authority, there being no judgment rendered on the bond, the right of action against the clerk had not accrued and the suit was premature. The cases cited by the plaintiff, Spain v. Clements, 63 Ga. 786 and Neal-Blun Co. v. Rogers, 141 Ga. 808 ( 82 S.E. 280), are not controlling here since they are authority for the point that where it is clearly impossible for the plaintiff to obtain judgment under the bond, the law does not require the doing of any useless thing.
Judgment affirmed. Bell, P. J., and Hall, J., concur.