Barry Finance Co. v. Lanier, 53 S.E.2d 694

Barry Finance Co. v. Lanier

53 S.E.2d 694 | Ga. Ct. App. | 1949

Under the facts of this case, the court did not err in setting aside the order of reinstatement insofar as the surety was concerned.

DECIDED MAY 31, 1949. This case originated as a result of a trover action, in the Civil Court of Fulton County, brought by Barry Finance Company, the plaintiff in error here, against John Harris. J. Sidney Lanier, the defendant in error, executed a forthcoming bond on behalf of Harris, the defendant in the bail-trover action. The bail-trover case came on regularly for trial before a judge of the Civil Court of Fulton County. After the plaintiff in the bail-trover action had presented all of its evidence and rested its case, the defendant Harris moved for a nonsuit, which the court granted and passed the following order: "It is ordered that said motion be sustained and said case be dismissed and costs assessed against the plaintiff. It is further ordered that the defendant and the surety on his bond are hereby relieved from liability thereunder; and said bond is ordered canceled." This order was passed on March 26, 1947. The plaintiff in *345 the trover action made a motion to reinstate the case. Thereafter, on April 17, 1947, the court passed the following order: "After argument of the above and foregoing motion to reinstate, having been heard, it is hereby ordered and adjudged that the case be reinstated. It is further ordered and adjudged that the bond posted by the defendant in the original suit be in effect revived for all future hearings of this suit." The surety Lanier, the defendant here, was served with no notice of the motion to reinstate the case. Subsequently, the case went to trial and judgment was obtained by the plaintiff in error here against Harris, the defendant in the bail-trover action, and the defendant in error here, Lanier, as surety. Thereafter, the fi. fa. was levied on property of the defendant Lanier to satisfy the judgment. This was the first notice that the defendant Lanier had of any reinstatement, trial, or judgment. Immediately after this levy he made a motion to set aside the judgment and fi. fa. levied against him as surety, on the grounds that he was not a party to the case to reinstate the judgment on the nonsuit, that he had no notice of the reinstatement of the case; no notice of trial, no notice of judgment, and no notice of fi. fa. or levy. The same trial judge, on this motion of Lanier, passed the following order: "Appearing to the court that J. Sidney Lanier, surety on the bond of John Harris on which a judgment was rendered against the defendant and his surety in the above styled case, that at the original trial of the case a nonsuit was granted and the defendant and his surety discharged; subsequently, and in the same term of court, a motion was made by plaintiff to reinstate the case, and the petition was served upon counsel for the defendant, John Harris, it appearing that there was no petition to reinstate the bond and to hold the surety liable, but the order granting the reinstatement recites that the bond is reinstated and his surety to become liable in the event of a judgment in favor of the plaintiff; there was no notice to the surety of the petition to reinstate; after the case was tried on the second hearing, a judgment was rendered in favor of the plaintiff and against the defendant and his surety, and a fi. fa. was issued in said matter against defendant and his surety, J. Sidney Lanier, and levy was made on the property of J. Sidney Lanier. Upon motion of J. Sidney Lanier to cancel said fi. fa. insofar as the *346 surety, J. Sidney Lanier, is concerned, null and void and of no effect.

"It is, therefore, the order of the court that fi. fa. No. 133 685, issued in favor of Barry Finance Company against John Harris, defendant, and J. Sidney Lanier, surety, be vacated, set aside, declared null and void and of no effect insofar as J. Sidney Lanier, surety, is concerned, and said judgment, fi. fa., and levy are declared null and void." 1. (a) Let us inquire as to the effect of the nonsuit in the instant case. Code § 3-808 reads as follows: "If plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence it within, six months, such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this section." We do not interpret this Code section as being altogether controlling in view of the issue here presented. The judgment of nonsuit relieved the surety and canceled the bond. It would appear to us that this was a judgment in the nature of final relief to the surety. It would seem, therefore, that in the event of any disturbance of this judgment by reinstatement or renewal of the action, the surety would have to be made a party. If under that Code section the plaintiff had recommenced or renewed his action, he could not have made the surety in the original action a surety in the renewed action. This is true for the reason that "a renewed case shall stand upon the same footing . . with the original case." The surety was not a party to the original action. Indeed, he was not a party at all and had no right to be heard. The case proceeded to trial without his being a party. There could be no judgment against the surety until one had been obtained against the defendant. If the judgment of nonsuit is granted in favor of the defendant, the principal in the surety bond, that judgment likewise enures to the benefit of the surety. It does not seem that the law would then contemplate that this judgment of nonsuit, which relieved the defendant in the trover action and relieved him as principal on the bond and relieved *347 the surety also, could be set aside without any notice to or service upon the surety. We conclude that the reinstatement here was in the nature of a renewed or recommenced action. We doubt if it could be reinstated at all so far as the surety is concerned. It is elementary that contracts of suretyship must be construed strictly, but if it could be reinstated, it seems that some sort of notice or service to the surety should be given. We are not unmindful that the judgment on a bond concludes the principal and surety. Likewise a judgment in favor of the principal and surety relieves them both. We might here call attention to the fact that the surety filed a forthcoming bond. Several days elapsed between the judgment of nonsuit and the reinstatement of the case. During the interim between the judgment of nonsuit and the judgment of reinstatement, the surety on the forthcoming bond had no further control over the property for which he stood sponsor. We think that a surety could, and oftentimes no doubt does, retain and have control over the property of his principal. After the judgment of nonsuit, the surety would lose such control and his risk would be increased, unless some applicable procedure, such as a motion for new trial or direct bill of exceptions, or appeal or the like, is pursued in accordance with the procedure established by the law creating said court. It does not appear from this record that any such procedure was followed. Hence it is, we think, a further reason why the court did not err in setting aside the order reinstating the case insofar as the surety is concerned. We are not here dealing with the question of the validity of the judgment as against Harris, the defendant in the trover action. The plaintiff in error called our attention to a number of cases, among which is Mitchell v. Toole, 63 Ga. 93. This decision is to the effect that the judgment on the bond concludes the surety and the principal. That is a correct abstract principle of law. Our attention is also called to a number of decisions to the effect that a surety on a trover or other bond is bound by any lawful judgment against his principal. This is a correct principle of law, but we are still confronted with the question of what is a lawful judgment. Our conclusion is that the judgment against the surety in the instant case is not such a judgment. Our attention is particularly called to a leading case of Waldrop v. *348 Wolff, 114 Ga. 610 (40 S.E. 830), and particularly the portion of that opinion from pages 615 through 620. A reading of that opinion will show that it is not applicable to the facts of the instant case. It is our opinion that the trial judge did not err, under the record in this case, in setting aside the judgment of reinstatement insofar as the surety is concerned.

2. Code § 3-808, supra, provides for the recommencement of a suit after judgment of nonsuit is granted. Section 3-508 reads: "A retraxit differs from a nonsuit, dismission, or discontinuance, in this: A retraxit is positive and conclusive of the plaintiff's right of action, while a nonsuit, dismission, or discontinuance is negative, and the plaintiff may recommence his suit upon the payment of costs." Code § 110-310 provides in the last sentence, "a judgment of nonsuit shall not bar a subsequent action for the same cause brought in due time." The point is made that the costs were not paid after the judgment of nonsuit was granted and before the reinstatement order, and therefore the order reinstating the case after judgment of nonsuit was illegal. The record does not affirmatively show that such costs were paid. In view of the fact that the surety was not notified or served concerning the reinstatement proceedings, and had no opportunity at that time to make the point, it is our opinion that it is proper to call our attention to it here. The court did not err in its judgment setting aside the order of reinstatement insofar as the surety was concerned.

Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.