32 S.E.2d 424 | Ga. Ct. App. | 1944
1. In a peace-warrant proceeding the person against whom the proceeding to keep the peace is brought may waive a preliminary trial or hearing, and thereupon, when he is ordered to give a peace bond by the magistrate and does so, the bond is not void and unenforceable on the ground that the defendant could not waive the duty of the magistrate to have a preliminary hearing or trial.
2. This was a suit on a peace bond executed by J. M. Hall as principal, and James Bracewell as security. When the bond in its entirety and the whole peace-warrant proceedings are looked to, and it is apparent from the face of the bond, together with all the surrounding circumstances, that the insertion of the name of J. M. Bracewell in one part of the bond where that of J. M. Hall should have been was manifestly an unintentional error, and that the name of J. M. Hall should have been inserted in that place: Held, that this clerical error of the scrivener should not be permitted to defeat the clear intention of the parties. Where the mistake in no sense changed the condition of the bond or the relationship of the parties thereto, it was relievable at law, and the bond was not void and unenforceable.
3. "All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver, and prevent the court, on a motion for a new trial, from inquiring as to the competency of the evidence." Andrews v. State,
4. Where a peace-warrant proceeding has been returned to the superior court before the next term thereof and is on file there, and the defendant has forfeited the bond by a failure to keep the peace, the bond can be extracted from the record and the obligor and surety can be immediately sued thereon in the superior court. This procedure is somewhat analogous to that followed in a suit on a criminal appearance bond when the bond is forfeited by the defendant and the State is allowed to extract the bond from the record in the criminal case and file suit on it, even though the criminal case is still pending.
2. The exception in special ground 1 is, "That the verdict and judgment against defendant are void and should be set aside for the reason that the bond, which is the instrument on which plaintiff's action is founded, is void and unenforceable for the reason that it is made payable to the Governor of the State and not to U. L. Browning, the affiant plaintiff, and for the further reason that said bond places no duty or obligation on J. M. Hall, but only on James Bracewell to keep the peace against U. L. Browning." The peace bond, the instrument upon which the defendant in error's action is based, was in the following language, to wit: "We, J. M. Hall, as principal, and James Bracewell, as security, agree jointly and severally to pay to Hon. Eugene Talmadge, Governor of Georgia, and his successors in office, $500, upon condition that said J. M. Bracewell fails to keep the peace as against U. L. Browning, his family, and property." The bond was introduced in evidence without objection and the exception taken in special ground 1 was made for the first time in the motion for a new trial. In Levar v. State,
3. The defendant, in special grounds 2 and 3, contends "that the verdict and judgment are based upon a void and unenforceable instrument; that the bond in the case was not a finished and completed obligation because it had not been returned to the next term of the superior court after it had been taken, and until this had been done and the affidavit and bond had been considered in the light of the evidence produced in support thereof, it was only part of a pending proceeding, was subject to be disapproved and canceled by the judge of the superior court, and was therefore not a matured and finished obligation and not yet ripe for suit to be brought thereon." The peace bond is analogous to a bail bond or recognizance in a criminal case, where the defendant has been bound over by a justice of the peace at a commitment trial and required to give a bail bond or recognizance for his subsequent appearance in the superior court. Such a recognizance in a criminal case may be forfeited and judgment obtained for a failure to appear before the case is tried and while the criminal case is still pending in the superior court. Whether the defendant is convicted or acquitted at the subsequent trial of the case does not affect the judgment obtained on the criminal appearance bond or recognizance. The question presented on a suit on the bond is, did he violate the condition of a valid bond? Not whether the justice of the peace's judgment in binding him over was correct; nor what was the subsequent judgment of the superior court as to whether he was guilty or innocent. "A peace-warrant case is never finally disposed of by the magistrate, but it is still his duty to return all of the papers to the superior court, where they remain on file for final action by the judge of that court." Levar v. State,
4. The exceptions in special ground 7 are controlled adversely to the plaintiff in error by the rulings in the three preceding division of this opinion.
5. The evidence authorized the verdict.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur. *841