Opinion
32780, 32781.
DECIDED JANUARY 13, 1950.
Claim; from McDuffie Superior Court — Judge Perryman. September 8, 1949.
Thomas J. Espy Jr., for McDaniel et al. Randall Evans Jr., for Norris.
1. The Court of Appeals is in all cases bound by the record as certified by the clerk of the trial court, and by the bill of exceptions as certified by the trial judge, and has no jurisdiction to hear contradictory statements or evidence to alter or vary the record so certified. Accordingly, the exception in this case must be treated as an exception to a judgment dismissing a claim for failure to file a sufficient forthcoming bond, in spite of statements of counsel to the contrary. Since a forthcoming bond is not necessary to the hearing of a claim case, a claim should not be dismissed for any reason affecting the validity or sufficiency of such bond.
2. The judgment of the trial court in Case No. 32781 is reversed and, since the decision in that case renders moot the questions raised in No. 32780, the bill of exceptions in that case is dismissed.
DECIDED JANUARY 13, 1950.
On June 8, 1949, an execution was levied upon certain personalty as the property of Mrs. E. E. McGahee Cline (now Mrs. W. W. McDaniel) in the amount of "$750.00 principal, $28.29 costs and interest on the principal sum from the 19 day of December, 1936, at the rate of 7%." The following day a claim was filed to the property by W. W. McDaniel, herein referred to as the claimant, together with a claim bond in the amount of $1600 in favor of Joe Norris the plaintiff in fi. fa., and also a forthcoming bond in the amount of $1600 in favor of Rueben Lyons, Sheriff of Chattooga County. These sums are of course not equal to double the amount of the execution when the interest thereon is computed. Nothing further was apparently done until September 7, 1949, when the case was called for trial, and at that time the plaintiff moved to dismiss the claim because as recited in the bill of exceptions in Case No. 32781, "the bond given by claimant to the Sheriff of Chattooga County was not in the sum equal to double the amount of the execution." It was stipulated that the property levied upon was worth more than the principal and interest named in the execution. The claimant then requested a continuance in order to amend the bond, which was refused and the case dismissed. The order, which was dated September 8, was as follows: "In the above named and stated case, same being a claim filed by W. W. McDaniel to certain property levied on under an execution in favor of Joe Norris and against Mrs. E. E. McGahee Cline (now Mrs. W. W. McDaniel), upon motion of the plaintiff, the said claim is dismissed because of the failure of the claimant to give a forthcoming bond for double the amount of the execution (principal and interest) and for failing, to amend said bond to conform to said requirement after said motion was made." A bill of exceptions was sued out and presented to the trial court on September 26. On September 29 the judge certified the bill of exceptions to be true, his certificate containing the notation that he had returned the bill of exceptions to the claimant for certain corrections, which corrections have been made.
On September 7, prior to the entering up of the order dismissing the case but after it had been announced, the plaintiff filed a motion for damages alleging that McDaniel's claim had been made for the purpose of delay only, and praying that an issue be made up and the jury award the plaintiff damages on the ground that the claim was made for delay only, under Code § 39-906, providing that whenever a claim shall be dismissed for insufficiency or withdrawn, the plaintiff may have a case made up and submitted to the jury, charging that said claim was filed for the purpose of delay, and that if the jury so finds it may award damages against the claimant. This motion was overruled, the court stating that the claim was dismissed for failure of the claimant to give bond in the necessary amount, and that no rights of property were passed upon by the jury. To the order dismissing his motion to have an issue made up, the plaintiff in fi. fa., Norris, excepted in Case No. 32780. A consideration of this case will depend upon a prior consideration of the appeal of the claimant McDaniel to the order of the court dismissing his claim, this being Case No. 32781. These cases are considered and decided together.
1. Counsel for the plaintiff in fi. fa., Joe Norris (the defendant in error in Case No. 32781), contends that the motion which was made to dismiss the claim was not based upon failure to file a sufficient forthcoming bond, but upon failure to file a sufficient claim bond. This was an oral motion and is not in the record. The order of the judge recites that the "said claim is dismissed because of the failure of the claimant to give a forthcoming bond for double the amount of the execution." The bill of exceptions, which has the approval of the trial court, recites: "The plaintiff moved to dismiss the claim because the bond given by claimant to the Sheriff of Chattooga County is not in the sum equal to double the value of the amount of the execution." In certain places in the record the bond is referred to simply as "the bond," but nowhere in either case does the record refer to it as "the claim bond." If the trial court did in fact designate it as a forthcoming bond through inadvertence, no reason is shown why this error should not have been called to the court's attention at the proper time and amended accordingly. In any case, however, this court is bound by the record as certified to by the trial court, and "has no jurisdiction to hear contradictory evidence impeaching the verity of a record from the trial court." Sweat v. Barnhill, 171 Ga. 294 (3) ( 155 S.E. 18). In Terrell v. Forest Park School District, 45 Ga. App. 713, 715 ( 165 S.E. 757), it was stated: "This court is, of course, bound by the record as certified by the clerk of the trial court, and by the bill of exceptions as certified by the trial judge. Neither the record nor the bill of exceptions recites the facts which counsel now seek to have this court consider." In Crawford v. Cook, 48 Ga. App. 456 ( 173 S.E. 187), it was held: "This court has no jurisdiction to hear contradictory evidence impeaching the verity of the record from the trial court. . . There is a certificate of the judge of the trial court with reference to this matter attached to the motion to dismiss, which was made after the bill of exceptions was transmitted to this court and filed and docketed herein. This court has no power to correct a mistake in a bill of exceptions which has been approved by the trial judge and filed in the office of the clerk and duly transmitted to this court; and this is true notwithstanding the trial judge may afterwards sign a certificate stating that the bill of exceptions as approved and filed contained a mistake. Minhinnett v. State, 106 Ga. 141 ( 32 S.E. 19); Hodges v. Powers, 14 Ga. 388. A bill of exceptions approved by . . the trial court as the true bill of exceptions `imports absolute verity and cannot be contradicted by aliunde proof.'" We are therefore bound by the record and must disregard any statements of counsel to the contrary.
Considering the motion as one to dismiss the forthcoming bond, it was without merit. The forthcoming bond is made not to the plaintiff but to the sheriff, and the plaintiff has no interest therein. In Bonner v. Little, 29 Ga. 538, where a motion was made by the plaintiff in fi. fa. to dismiss a claim on the ground that the sheriff had turned the property over to the claimant without any forthcoming bond, it was held: "In claim cases, where there is a legal affidavit of claim, and also a legal claim bond, a forthcoming bond is not necessary to the hearing of the claim." The trial court therefore erred in sustaining the plaintiff's motion to dismiss the claim.
2. The judgment of the trial court in Case No. 32781 is reversed for the reasons set forth in division 1 hereof. Also for the reasons there set forth the questions raised in Case No. 32780 are rendered moot and the bill of exceptions in that case is accordingly dismissed.
Judgment reversed in Case No. 32781, and bill of exceptions dismissed in Case No. 32780. MacIntyre, P. J., and Townsend, J., concur.