Opinion
35946.
DECIDED JANUARY 30, 1956.
Complaint. Before Judge Manning. Cobb Superior Court. May 14, 1955.
Murphy Murphy, for plaintiff in error.
Robert A. Edwards, contra.
The court did not err in overruling the demurrers to the petition and in entering up judgment against the bondsmen.
DECIDED JANUARY 30, 1956.
Mrs. Mary A. McClung, hereinafter called the plaintiff, filed in the Superior Court of Cobb County her verified petition for an attachment for contempt against the defendant Hugh D. McClung, for the forfeiture of his bond which had previously been filed to guarantee compliance with an order of the court for certain payments of alimony awarded to the plaintiff, and also for judgment against the sureties on the said bond, Marlin Lamar, P. O. McClung and J. T. Wheeler, of Haralson County, Georgia. The petition showed that the defendant was in arrears in payment of said alimony. There was no conflict as to the amount. The petition prayed for a judgment against the principal and the surety on said bond.
The matter came on for a hearing before the Honorable Jas. T. Manning, Judge of Cobb Superior Court, at which time Wheeler and P. O. McClung, filed their general demurrers to said petition on the ground that it did not set out a cause of action against them, and on the further ground that it showed on its face that the bond upon which judgment was asked was a compliance bond and not an eventual condemnation money bond and, therefore, not subject to a summary judgment, also on the further ground that said bond created a new liability and therefore was not an eventual condemnation bond but was a bond which would require a new and independent suit to enforce it. These demurrers were heard by the judge, who entered an order overruling them on every ground contained therein. On this ruling the defendants P. O. McClung and J. T. Wheeler assign error here.
The matter then came on for a hearing and there was evidence offered by the plaintiff that Hugh D. McClung was in arrears in the amount of $520 on said bond. The judge entered an order finding a summary judgment against the defendants P. O. McClung and J. T. Wheeler, in the amount of $520 on said bond.
This case was first presented to the Supreme Court but the Supreme Court transferred the case to the Court of Appeals for disposition.
The question to be determined is: Would the bond be subject to a summary judgment entered thereon by the court or would a new and independent suit be required to enforce it against the bondsmen? That portion of the bond which is pertinent to the determination of this case reads: "Now in order to guarantee his compliance with the order of the court to make said payments the defendant brings P. O. McClung and Marlin Lamar and Joe T. Wheeler as security, and they jointly and severally bind themselves to comply with the order of the court up to the amount of said bond, and this bond is made in the principal sum of $1,000 in order to secure the compliance with the order of this court." These defendants signed the bond for the simple purpose of guaranteeing this alimony money due by Hugh D. McClung. U.S. Fidelity c. Co. v. Tucker, 165 Ga. 283 ( 140 S.E. 866), and Vickers v. Jones, 200 Ga. 338 ( 37 S.E.2d 205), cited by the defendants, stated correct principles of law, but on the contrary support the conclusions we reach, and are not cause for reversal of the instant case under the facts. It is contended by counsel for the defendants that a summary judgment could not be entered on the bond in the instant case and that a new and independent suit would be required. In support of this contention counsel for the defendants cite Offerman c. R. Co. v. Waycross R. Co., 112 Ga. 610 ( 37 S.E. 871). That case is not authority for reversal of the instant case. The instant case is an alimony case, a continuing thing. In Jackson v. Johnson, 164 Ga. 839 ( 139 S.E. 663), the Supreme Court held: "After the termination of a suit for divorce and alimony, in which the petitioner is granted alimony, where proceedings are had to enter judgment on a ne exeat bond executed by the defendant in such suit as principal and another as security to secure the release of the principal from jail, the suit for alimony and divorce is not `functum officio' as relates to the proceeding to enter judgment on the bond; and where the petition or motion filed by the plaintiff states the above facts and alleges a breach of the bond, the security is shown to have some `connection' with the suit." See also Alexander v. Slear, 177 Ga. 101 ( 169 S.E. 304); Jordan v. Sexton, 42 Ga. App. 218 ( 155 S.E. 356), and Moore v. Edmondson, 184 Ga. 818 ( 193 S.E. 780). In the case at bar the bond does not create an independent liability but the liability is a continuing thing arising out of the judgment of the court awarding alimony to the plaintiff. Had this been an action other than an alimony proceeding, in absence of appeal, the court would have lost jurisdiction of the matter after judgment had been rendered. The court retains jurisdiction and may enforce the payment of any judgment it renders in such a case, either by confining the defendant to jail or by requiring a bond to assure compliance with its judgment as an alternative. It would be expensive to require a lawsuit on the bond each and every time an alimony payment was not forthcoming. It cannot be argued that the court has no jurisdiction to find Hugh D. McClung in contempt in the case at bar. The trial judge did find Hugh D. McClung in contempt, and in pursuance of such contempt order rendered judgment on the bond. The procedure for judgment on the bond is ancillary to the attachment for contempt and it is unnecessary to require an action on the bond other than a summary proceeding. It is, and we hold it to be, an eventual condemnation bond. See Vickers v. Jones, supra.
The trial court did not err in overruling the demurrers of the defendant to the petition and in entering up judgment against the bondsmen.
Judgment affirmed. Felton, C. J., Carlisle, Quillian and Nichols, JJ., concur. Townsend, J., dissents.
Code § 103-103 provides as follows: "The contract of suretyship is one of strict law, and the surety's liability will not be extended by implication or interpretation." Code § 103-208 provides as follows: "When the fact of suretyship appears on the face of the contract, the creditor shall sue out process against the surety, and enter up judgment against him as such." In Walker v. Walker, 42 Ga. 142 it was held: "The right to enter up judgment against securities at the same time with their principal exists only by statute, and can only be done in such cases where the statute has changed the common law." See also Offerman c. R. Co. v. Waycross R. Co., 112 Ga. 610.
The petition here, and the order granting summary judgment against the sureties pursuant thereto, were objected to on the ground that the sureties are entitled to be sued in an independent action, and that this bond does not fall within that class of cases where judgment may be entered against them on motion in the main case proceeding against their principal, they not being parties thereto. I think this objection is well taken. The compliance bond here does not fall under any statutory exception to Code § 103-208. It is not an appeal bond under Code § 6-105. It is not a stay of execution bond under Code § 39-502 (which only stays execution on a judgment for a 60-day period). It cannot be construed to be a ne exeat bond, because the writ of ne exeat is not available to enforce a judgment obtained prior to the issuance of such bond. Lomax v. Lomax, 176 Ga. 605 (3) ( 168 S.E. 863). It appears from the record here that this bond was required and given in a contempt proceeding to enforce payment of alimony after final judgment in the divorce case.
Further, this is not a condemnation bond under Code § 103-209 as follows: "It shall be lawful to enter judgment against principal and sureties at the same time, as in cases of appeal, in all cases in law or equitable proceedings when a bond has been given by the losing party conditioned to pay the eventual condemnation money in said action, and it shall not be necessary to bring suit upon such bond." A condemnation bond is one wherein the maker agrees to pay to the payee therein any judgment which he may recover against the principal in the suit in which such bond is given. U.S. Fidelity c. Co. v. Tucker, 165 Ga. 283, 285, stating to this effect, holds that because not given to insure the payment of a future judgment, a bond given to an executor of an estate by a distribute holding property (funds) paid over to him by the executor, was not a condemnation bond but an indemnity bond. Vickers v. Jones, 200 Ga. 338, holds that a bond imposing a new liability created by the terms of the bond itself cannot be a condemnation bond. Jackson v. Johnson, 164 Ga. 839, deals with a ne exeat bond and is not applicable to this case.
Since the obligations of suretyship are subject to strict construction, since sureties, except as specifically provided otherwise by statute, are entitled to be directly sued before judgment is entered against them and a failure to do so would amount to the deprivation of the surety's right to a jury trial, and since this case falls within none of the statutory exceptions under which summary judgment may be entered against sureties in an action against the principal, it is my opinion that the court erred in overruling the demurrers to the petition and entering judgment against the defendant sureties in the compliance bond.