Fields v. Arnall

34 S.E.2d 692 | Ga. | 1945

1. Where proceedings to forfeit a criminal bond recite that the bond requires the principal to appear and answer for the offense of "felony," and such proceedings are properly served upon the surety, a motion to set aside the final judgment of forfeiture, upon the ground that the bond required the appearance of the principal to answer for the offense of "manufacturing whisky," shows no reason for setting aside the judgment and is subject to general demurrer.

2. The act of 1943 (Ga. L. 1943, p. 282), while making it mandatory upon the court, after rendering final judgment of forfeiture of a criminal bond, to relieve the surety from liability thereunder upon his surrendering the principal into court and paying all costs, yet does not authorize in such a case the setting aside of such final judgment, and the motion, praying only that such judgment be set aside because the principal had been surrendered into court and costs paid, was properly dismissed on demurrer.

3. Where a general demurrer to a petition includes several grounds and is sustained generally, it will be presumed that it was sustained on all of the grounds, and where the petition is not subject to one of the grounds, although subject to the other grounds, a general affirmance by this court would be conclusive that the petition was subject to all grounds of the demurrer and would put an end to the case. Hence, in the circumstances stated the judgment of the trial court should be affirmed with direction that it be modified so as not to adjudicate in favor of the demurrant the ground which this court holds to be without merit.

(a) While it is the general rule of this court that constitutional questions will not be decided when a decision in the case can be reached upon other grounds, yet where, as here, the general demurrer sustained by the trial court contained several grounds, one of which raised a constitutional question, it becomes necessary, for reasons set forth above, that this court pass upon the constitutional question so as to determine whether or not the judgment, if affirmance is required, be unqualifiedly affirmed or affirmed with direction.

(b) The above-stated act, while amending two Code sections which dealt with the subject of bail in criminal cases, by providing for service of the forfeiture proceeding and for relief of the surety after final judgment, does not contain more than one subject-matter in violation of the constitution (Code, § 2-1808).

4. The act of 1943, supra, fails to describe the procedure by which the surety may be relieved as therein provided for after final judgment; but is not on this account void for uncertainty and indefiniteness. It names the court in which the relief must be had as being the same court rendering the final judgment, and makes it mandatory upon such court to relieve the surety, thus requiring the court to act in such manner as a court may properly act to effectually grant such relief. To the extent that the act is silent in this respect the provisions of the Code, § 3-105, may be resorted to. The act is not invalid because of uncertainty and indefiniteness, as contended by one ground of the demurrer.

No. 15209. JULY 3, 1945. On February 1, 1944, Ray Acker as principal and J. A. Fields as surety executed an appearance bond in the sum of $2000, payable to Ellis Arnall, Governor, and his successors in office, conditioned that the principal appear at the next term of the superior court of Floyd County, Georgia, from day to day and from term to term to answer an indictment for the offense of manufacturing whisky. On April 19, 1944, proceedings were instituted for the forfeiture of the said bond in which it was recited that the principal was to answer for the offense of a felony. The scire facias issued thereon likewise recited that the principal was obligated in the bond to answer and abide any judgment rendered against him for the offense of a felony. Notice of the forfeiture proceeding was served upon the surety personally by the sheriff, and a copy thereof was served upon the principal by leaving the same at his home. On July 17, 1944, during the July term of the said court, final judgment was rendered against Ray Acker as principal and J. A. Fields as surety for the principal sum of $2000 and costs. On March 6, 1945, J. A. Fields filed with the said court his written motion to set aside the final judgment, upon the ground, first, that the forfeiture proceeding described the offense for which the bond was given as "felony," whereas the bond described it as "manufacturing whisky;" and upon the further ground that, after the final judgment was entered, and during the July term, 1944, of the superior court of Floyd County, Georgia, the movant, on August 31, 1944, surrendered and delivered Ray Acker, the principal, to the sheriff of Floyd County, Georgia, and in open court, that said principal was immediately confined by the sheriff in the county jail to await disposition of the indictment pending in the State court, and that the movant paid all costs in the said proceeding. The motion further stated that, on account of the facts set forth, charging that the movant had surrendered the principal and paid the costs, under and by virtue of the provisions of an act of the General Assembly of Georgia approved March 20, 1943 (Ga. L. 1943, p. 282), he is relieved of the penalty of the said bond, and such judgment against him should be set aside and vacated. The movant prayed that the recited grounds of the motion to set aside and vacate the said judgment be sustained.

To this motion the solicitor-general filed a demurrer, alleging that the motion set forth no grounds for setting aside the judgment complained of; that the bond did not appear as a part of the record in the forfeiture proceeding; and hence that the part complained of, to wit, that the offense in the forfeiture proceeding was described differently from that in the bond, does not appear on the face of the record and is not a ground for setting aside the judgment. The demurrer assails that portion of the motion which specifically claims the movant's right to relief under the provisions of the act of 1943, supra, upon the ground that the said act is unconstitutional and void, in that it offends the Code, § 2-1808, which provides that no law or ordinance shall pass which refers to more than one subject-matter or contains matter different from what is contained in the title thereof, in that the said act is an attempt to amend the Code, §§ 27-904 and 27-906, dealing with different matters, the former with the relief of a surety and the latter with service of scire facias. The demurrer attacks the act referred to upon the further ground that it is void for uncertainty and indefiniteness, in that it does not set forth any means or method for relieving the said bondsman, and does not provide what type of action shall be brought, and does not specify the court in which the action shall be brought, and does not provide any rules or procedure for obtaining the relief from the court.

On April 14, 1945, judgment was rendered sustaining the demurrer, and the movant excepted. (After stating the foregoing facts.) 1. There is no merit in that portion of the motion attacking the final judgment upon the ground that the offense is described in the bond as "manufacturing whisky" and is described in the forfeiture proceeding as "felony." In the first place, the forfeiture proceeding asserts that the offense is described in the bond as "felony," and service was duly had upon the movant, and the recital of facts therein was not by him challenged in the forfeiture proceeding. Any attack he might have made upon this ground should have been made at that time, and it comes too late in this motion to set aside the judgment for the movant to challenge the truth of the recital of facts made in the forfeiture proceeding. Furthermore, this being a motion to set aside a judgment, and there being no claim that it was fraudulently procured, the motion can be sustained only if the defects rendering the judgment invalid appear on the face of the record. Code, § 110-702; Artope v. Barker, 74 Ga. 462;Tietjen v. Merchants' Nat. Bank, 117 Ga. 501 (43 S.E. 730); Sweat v. Latimer, 119 Ga. 615 (46 S.E. 835); Drake v. Brown Mfg. Co., 121 Ga. 550 (49 S.E. 590). The alleged defect here not appearing on the face of the record, this ground of attack upon the judgment is without merit.

2. The remaining portion of the motion to set aside the judgment is expressly based upon the provisions of the act of 1943, supra, and alleges that the movant as surety has surrendered his principal to the sheriff in open court and paid all accrued costs therein. The act relied upon is mandatory upon the court to relieve the surety from liability after final judgment has been entered when the surety has surrendered the principal to the court and paid all the costs in the forfeiture proceeding. The motion here, however, does not seek merely an order of the court relieving the surety from liability, but seeks to have the final judgment set aside. The principal in such judgment remains bound thereby and is not entitled to relief under the statute here invoked or under any other provision of the law. That judgment as to him is valid and enforceable and should not be set aside. The motion in the present case when challenged by demurrer must be tested, not alone by the allegations it contains, but by whether or not such allegations are sufficient to entitle the movant to the relief prayed for. The statute relied upon by the movant does not entitle him to a judgment setting aside the final judgment complained of, but merely requires the court to relieve him from liability when he has complied with the condition set forth in the statute. The motion contains no allegations which would entitle the movant to have the judgment set aside; and, this being the only relief prayed for, it was subject to the grounds of demurrer which alleged that no grounds are set forth in the motion which would entitle the movant to the relief sought. The court did not err in sustaining this ground of demurrer.

3. It is the rule of this court that constitutional questions will not be decided when a decision in the case can be reached upon other grounds. Great Atlantic Pacific Tea Co. v.Columbus, 189 Ga. 458, 465 (2) (6 S.E.2d 320). However, where, as here, the general demurrer was sustained, it will be presumed that all of the grounds were sustained, and the effect of such ruling was to adjudicate in favor of the demurrant the constitutional question. If on review by this court it be determined that the petition was not subject to this ground, the judgment on demurrer would not be unqualifiedly affirmed, since a general affirmance by this court would be conclusive on the constitutional question also and would put an end to the case. In these circumstances, the judgment would be affirmed with direction that it be modified so as not to adjudicate in favor of the demurrant the ground which this court holds to be without merit. Herring v. Smith, 141 Ga. 825 (4) (82 S.E. 132). For the reason stated, we deem it necessary to now rule upon this constitutional question.

The clause of the constitution invoked by the solicitor-general (Code, § 2-1808), stands as a bar to any legislation which embodies more than one subject-matter. But that constitutional provision does not mean that every branch and segment of the general subject constitutes a subject-matter different from that of the general subject to which it is related, and, hence, must be treated by a separate and independent act of the General Assembly. It has been repeatedly ruled by this court that the General Assembly is empowered under this provision of the constitution to legislate in one act upon a general subject and to embody therein all elements of the general subject and that such an act is valid. Carroll v. Wright, 131 Ga. 728 (7) (63 S.E. 260); Williams v. State, 150 Ga. 480 (104 S.E. 408); Crowell v. Akin, 152 Ga. 126 (4) (108 S.E. 791, 19 A.L.R. 51). While the act here under attack is an amendment of two separately numbered Code sections, both of which deal with the subject of criminal bonds, it is not thereby rendered void under the constitution as containing more than one subject-matter. The act, taking as its subject-matter criminal bail, properly deals with the matter of forfeiture, including service and relief of the surety upon his meeting the conditions there stated. Accordingly, the act does not offend the constitution (Code, § 2-1808), and is valid as against this ground of the demurrer.

4. Nor is the act in question void for uncertainty and indefiniteness, in that it fails to designate the court or define the procedure for obtaining the relief of the surety therein provided. The decision in County of Bibb v. Winslett,191 Ga. 860 (14 S.E.2d 108), has no application here. The act there dealt with was held invalid because it was incomplete. The court in which the relief under the present act must be had is specifically designated by the language of the act itself, in that it identifies the court which must grant the relief as thecourt, referring to the court which renders the final judgment of forfeiture. It makes it mandatory upon that court to relieve the surety after such final judgment upon his surrendering the principal and paying the costs. It was not necessary to define in the act any specific method which the court must employ to grant this relief. Obviously the court must employ such method as the court finds necessary to effectually and legally relieve the surety. The act unmistakably confers upon the surety a legal right to be relieved, and, in the absence of specific provisions defining the remedy by which this right may be protected, the Code, § 3-105, would be applicable. It is there declared that, "For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other." This ground of the demurrer was without merit, and should not have been sustained. Accordingly, the judgment excepted to is affirmed with direction that it be modified by the trial court to conform to this opinion.

Judgment affirmed, with direction. Bell, C. J., Jenkins, P.J., Atkinson and Wyatt, JJ., concur.