Opinion
36977.
DECIDED JANUARY 28, 1958.
Action on ne exeat bond. Cobb Superior Court. Before Judge Manning. September 10, 1957.
Faine Chambers, for plaintiff in error.
Watson L. White, contra.
1. Since the ne exeat order issued by the court was a lawful order and did not contain any unlawful conditions required of the defendant, the bond given in response to the writ of ne exeat on the court's order was not void even though it contained conditions not required by the court's order.
2. The question whether a writ of ne exeat can issue ex parte cannot be raised by a demurrer to a petition in an action on the bond.
DECIDED JANUARY 28, 1958.
Mildred Eleanor Jackson filed a summary petition on a ne exeat bond on which Oscar H. Jackson was principal and Herbert S. Goldstein was surety. The petition alleged that the plaintiff had filed an action against Oscar H. Jackson to collect an indebtedness due the plaintiff under a decree for divorce and alimony in the Circuit Court of Duval County, Florida, asking that an order ne exeat issue against Oscar H. Jackson. It is further alleged that the court passed such order as petitioned for and that a writ ne exeat issued on such order and that in response to such writ Oscar H. Jackson, as principal, and Herbert S. Goldstein, as surety, had posted the bond sued upon. The plaintiff further alleged that Oscar H. Jackson had defaulted on the bond by not complying with the condition of the court's order.
Herbert S. Goldstein demurred to the summary petition on the grounds that the action was based on a void bond and that the petition showed on its face "that it was an ex parte proceeding upon which an order for a writ ne exeat was issued and that there is no authority at law for such a writ without the presentation of evidence for the consideration of the court."
The court overruled the demurrer and Herbert S. Goldstein excepts.
1. The requirements of Code § 37-1403 as to what condition or conditions must be given in a ne exeat bond are dependent upon the requirements of the court's order, upon which the writ is issued.
While it cannot be definitely ascertained from the petition in the action on the bond exactly the tenor of the court's order granted in the application for ne exeat, it will be presumed that the court entered a valid order and only required that the principal on the bond appear to respond to the judgment entered in the main case. Since the court's order only required an appearance to respond, the principal was required only to give a bond to meet that requirement and if he included more conditions in the bond than required in the order, such inclusion does not render the bond void, and the principal and surety are bound only by the condition contained in the bond which was required by the court's order. The principle involved is the same as that involved in statutory bonds. For the law applicable in the case of statutory bonds, see St. Paul-Mercury Indem. Co. v. Koppers Co., 95 Ga. App. 687, 696 ( 99 S.E.2d 275).
In August v. August, 65 Ga. App. 883 ( 16 S.E.2d 784), the bond given contained the conditions called for in the court's order and since the court was not authorized by law to impose such conditions in his order, the order was erroneous, and the bond based on such illegal order and following the conditions required by the order was void. Such was not the case here.
The demurrer based on the ground that the action was predicated on a void bond was without merit.
2. The question whether a writ of ne exeat can issue ex parte cannot be raised by a demurrer to a petition in an action on the bond.
3. The court did not err in overruling the demurrer to the petition.
Judgment affirmed. Quillian and Nichols, JJ., concur.