Opinion
39247.
DECIDED JANUARY 26, 1962. REHEARING DENIED FEBRUARY 12, 1962.
Dispossessory warrant, etc. Polk Superior Court. Before Judge Foster.
Marson G. Dunaway, Jr., for plaintiff in error.
Cecil D. Franklin, contra.
The court erred in striking the amendment to the defendant's counter-affidavit and in dismissing the counter-affidavit.
DECIDED JANUARY 26, 1962 — REHEARING DENIED FEBRUARY 12, 1962.
Mrs. Rendie Reeves instituted a dispossessory-warrant proceeding against Miss Lelia Catherine Reeves. The record shows that there were two affidavits in the record purporting to be the basis for the issuance of the warrant. The affidavit in one warrant is unsigned. The defendant filed a counter-affidavit, and bond to stay the proceedings. The original bond began by stating: "We, Mrs. Lelia Catherine Reeves, principal, and Sam Copeland, security, acknowledge ourselves jointly and severally bound to Rendie Reeves subject to the following conditions: . . . ." The bond was signed by Sam Copeland as surety but was not signed by the defendant, as principal. The dispossessory warrant and the counter-affidavit were returned to the Superior Court of Polk County. The defendant demurred to the dispossessory warrant on grounds which need not be stated for the reason which will appear later. The defendant filed an amendment to her counter-affidavit, in which she alleged that she carried the original counter-affidavit, together with the bond for her surety, to the constable who informed defendant that it would not be necessary for her to sign the paper except on the affidavit and that through the misinformation and misdirection of the said constable he signed the bond on the line on which defendant would have signed had the constable not informed her that it was not necessary. The amendment contained another bond signed by the defendant as principal and Sam Copeland as security. The amendment to the counter-affidavit sought to amend the counter-affidavit by attaching the new bond, just referred to, and striking the bond attached to the original counter-affidavit. The amendment to the counter-affidavit alleged that the original bond was approved by the constable (Wesley Rogers). The plaintiff moved to dismiss the counter-affidavit and bond of the defendant on the ground that no legal bond was made and delivered to the levying officer. The court sustained the plaintiff's motion to strike the amendment to the counter-affidavit and to strike the counter-affidavit itself. The court did not make any ruling whatsoever upon the defendant's demurrers or motion to strike the affidavit of the plaintiff and to dismiss the action. The defendant excepts to the failure of the court to rule on her demurrers to the dispossessory warrant proceedings and to the order sustaining the motion to dismiss the amendment to the counter-affidavit and the plaintiff's motion to dismiss the original counter-affidavit.
1. The contention of the plaintiff in error that the court should have first passed upon the defendant's demurrers and motion to dismiss the dispossessory warrant proceedings under Code Ann. § 81-1002 is without merit. In this kind of proceeding the court does not have jurisdiction in the absence of the filing of a valid counter-affidavit and bond as required by law, so that the court had first to determine its jurisdiction of the case before it could proceed to pass upon whatever attack was made by the defendant against the original proceedings. Murphey v. McGough, 105 Ga. 816 ( 31 S.E. 757).
2. We think that the court erred in dismissing the amendment to the counter-affidavit and the counter-affidavit itself. Code § 81-1204 provides that: "All bonds taken under requisition of law in the course of a judicial proceeding may be amended and new security given if necessary." Under this Code Section the following bonds have been held to be amendable: (1) claim bond, Gordon v. Commercial Auto Loan Corp., 85 Ga. App. 808, 810 ( 70 S.E.2d 406); (2) garnishment bond, Janes v. Tomlinson, 30 Ga. 540; Cunningham v. Lamar, 51 Ga. 574; Carrollton Bank v. Glass, 35 Ga. App. 89 ( 132 S.E. 238); (3) illegality bond, Lytle v. DeVaughn, 81 Ga. 226 ( 7 S.E. 281); (4) bond given by defendant in mortgage fi. fa., in connection with affidavit of illegality, Miller Service, Inc. v. Miller, 76 Ga. App. 143 (1) ( 45 S.E.2d 466); (5) replevy bond, Gelders v. Mathews, 6 Ga. App. 144 ( 64 S.E. 576); Sherman v. Morris, 17 Ga. App. 446 (1a) ( 87 S.E. 709); J. S. Cowart Son, Inc., v. Cook, 55 Ga. App. 717 ( 191 S.E. 173). Code § 81-1205 provides that: "The mistake or misprision of a clerk or other ministerial officer shall in no case work to the injury of a party, where by amendment justice may be promoted."
Under the circumstances of this case, as alleged in the amendment to the counter-affidavit, the original bond was amendable by the addition of the signature of the defendant as principal. The principal purpose of having a surety on a bond is to provide protection to the obligee. The original bond showed the approval of the surety by the constable and it seems to us that the substitution of a new bond by amendment is as efficacious as the addition of the name of the principal to the original bond. The case of Fountain v. Napier Bros., 109 Ga. 225 ( 34 S.E. 351), does not require a different ruling for the reason that the bond involved was a forthcoming bond and if the original forthcoming bond was not accepted by the levying officer, there was no binding contract between the officers and the signers of the bond. In such a case there could be no amendment which would bind the parties if they were not bound by the execution of the original bond and an acceptance thereof. In this case, in view of the fact that the original bond was approved by the constable and that the substituted bond was signed by the same surety and the further fact that the case was in the superior court and the handling of any part of the case was out of the hands of the constable, the court had the authority to allow the amendment and erred in not doing so. The ruling of this court leaves undisposed of in the trial court the questions arising out of the demurrers and the motions to dismiss the dispossesory-warrant proceeding itself. The court erred in dismissing the amendment to the counter-affidavit and in dismissing the counter-affidavit.
Judgment reversed. Bell and Hall, JJ., concur.