Branan v. Feldman

May 28, 1924
No. 3897
Reporters:
, ,
Before:
Hines
Hines, J.

(After stating the foregoing facts.)

1. When an action of bail-trover is instituted against a defendant, it is the duty of the sheriff or other lawful officer serving the petition or process in such action “to take a recognizance payable to the plaintiff or complainant, with good security, in double the amount sworn to, for the forthcoming of such personal property to answer such judgment, execution, or decree as may be rendered or issued in the case, and such security shall be bound for the payment ‍​‌​​‌‌​‌‌​‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​‌​‌​‌​‌​‌​​​‌​‌‌​​​‌‌‌‌​​‌​‌​‌​​‌​​​​‌‌​​‌​​‌‌‌​​​‌​​​‌‌‌‌‌‌‌​​‍of the eventual condemnation-money.” Civil Code (1910), § 5151. The bond made and filed by the defendant in the bail-trover suit, with the petitioners as sureties, was not the statutory bond prescribed by this section of the Code; and the officer who served the petition and process acted properly in declining to accept such bond and discharge the defendant from custody. Thereupon the defendant filed his application for discharge from arrest, on the ground that he was unable to give the security required by law, or to produce the property. The judge to whom the petition for discharge was presented passed an order requiring the plaintiff in the trover action to show cause before him, on February 4, 1919, why the prayers of the petition should not be granted; and in this order directed that the “petitioner, Z. T. Coppedge, may be placed in the custody of some officer deputized by the sheriff of said county, to be safely kept by him and brought before me at the time ‍​‌​​‌‌​‌‌​‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​‌​‌​‌​‌​‌​​​‌​‌‌​​​‌‌‌‌​​‌​‌​‌​​‌​​​​‌‌​​‌​​‌‌‌​​​‌​​​‌‌‌‌‌‌‌​​‍and place set forth in this order.” On the date set for said hearing in the last-mentioned order, the judge passed a consent order, continuing the hearing until February 15th, and providing that “in the meantime petitioner, Z. T. Coppedge, may go on his own recognizance.” This order was consented to in writing by the attorneys for the plaintiff in the bail-trover proceeding. Thus the defendant in that action was discharged from the custody of the arresting officer, not by virtue of the bond, but by said order which was passed with the express written consent of the attorneys of the plaintiff. He was permitted to go on his own recognizance, with plaintiff’s approval. *383This being so, the bond made and filed by the defendant in that action was not accepted by the arresting officer or by the plaintiff therein; but it was held and treated as if no bond had been given as required by the statute. The defendant was not discharged from custody by reason of this ‍​‌​​‌‌​‌‌​‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​‌​‌​‌​‌​‌​​​‌​‌‌​​​‌‌‌‌​​‌​‌​‌​​‌​​​​‌‌​​‌​​‌‌‌​​​‌​​​‌‌‌‌‌‌‌​​‍bond. He gained his liberty by being permitted to go on his own recognizance with the consent of the plaintiff. This being so, the bond made and filed by the defendant in the trover suit, and not accepted, and on which the defendant was not released, was not such a bond as authorized the trial judge to enter judgment thereon against the sureties on the recovery of a verdict by the plaintiff in the bail-trover action. This principle, in effect, was ruled by this court in Parks v. Hardwick, 158 Ga. 71 (122 S. E. 553). The rules in cases of bail in criminal cases generally apply to bail in civil cases. Griffin v. Moore, 2 Ga. 331. So we think under the decision in Parks v. Hardwick, supra, the court was without authority, under the facts of this case, to render judgment against the sureties upon the bond made and filed by the defendant in the trover action.

2. The petition alleges that the verdict and judgment in the bail-trover proceeding was procured as. the result of fraud and ‍​‌​​‌‌​‌‌​‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​‌​‌​‌​‌​‌​​​‌​‌‌​​​‌‌‌‌​​‌​‌​‌​​‌​​​​‌‌​​‌​​‌‌‌​​​‌​​​‌‌‌‌‌‌‌​​‍collusion between the plaintiff and the administratrix of the deceased defendant in that action. Collusion between parties to the bail-trover suit to have judgment entered up for the purpose of defrauding the bail renders such judgment void. As against ‘the bail such judgment is void. Parkhurst v. Sumner, 23 Vt. 538 (56 Am. D. 94); Mott v. Hazen, 27 Vt. 208, 213; Charles v. Hoskins, 14 Iowa, 471 (83 Am. D. 378); Berger v. Williams, 4 McLean, 577; Thayer v. Clark, 4 Abb. App. 391; Dane v. Gilmore, 51 Me. 544; State v. Woodside, 29 N. C. 296; Great Falls Mfg. Co. v. Worster, 45 N. H. 110; Smith v. Cuyler, 78 Ga. 654 (2) (3 S. E. 406); 15 R. C. L. 706, 707, § 158; Id. 841, § 314. This holding does not conflict with the rulings in Jackson v. Guilmartin, 61 Ga. 544, Crawford v. Jones, 65 Ga. 523 (2), Thomas v. Price, 88 Ga. 533 (2) (15 S. E. 11), Hogans v. Dixon, 105 Ga. 171 (31 S. E. 422), Holmes v. Langston, 110 Ga. 861, 869 (36 S. E. 251), and Waldrop v. Wolff, 114 Ga. 610 (40 S. E. 830), that sureties on eventual condemnation-money bonds in actions of trover are bound by the judgments against their principals, and will not be heard to raise any questions which ‍​‌​​‌‌​‌‌​‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​‌​‌​‌​‌​‌​​​‌​‌‌​​​‌‌‌‌​​‌​‌​‌​​‌​​​​‌‌​​‌​​‌‌‌​​​‌​​​‌‌‌‌‌‌‌​​‍could have been raised by their principals before *384judgment. That principle applies to real contests, and not to sham battles.

3. The jurisdiction of courts of equity to vacate judgments obtained by fraud or collusion is too well recognized to require discussion. Langston v. Roby, 68 Ga. 406; Williams v. Lancaster, 113 Ga. 1020 (39 S. E. 471); Ford v. Clark, 129 Ga. 292 (58 S. E. 818); Giles v. Cook, 146 Ga. 436 (2) (91 S. E. 411).

4. Applying the above principles, the petition set forth a cause of action; and the court erred in dismissing it on general demurrer.

Judgment reversed.

All the Justices concur, except Atkinson and Hill, JJ., disqualified.