176 Ga. 605 | Ga. | 1933
The defendant in error, the former wife of the plaintiff in error, filed a petition praying that he be attached for contempt, and that he be restrained by the writ of ne exeat from leaving the jurisdiction of this State. Upon this application the judge ordered: “The petition in the above case of Mrs. Begis Lomax against J. H. Lomax being presented to me, and after consideration thereof, it is ordered that the defendant, J. H. Lomax, show cause before me at my office in Bibb superior court-house on the 3rd day of April, 1931, at ten o’clock a. m., why the prayers of the petition should not be had and allowed, and why he should not be adjudged in contempt of court. It is further ordered that the writ of ne exeat issue, and that in default of^a bond by the defendant not to remove beyond the jurisdictional limits of this State and to be in court when required by its order to answer the judgment therein, that in such case he be committed to the common jail of said county, there to be safely and securely kept by the sheriff without bail. It is further ordered that the bond of the said J. II. Lomax is fixed at the sum of $1500 until the further order of this court.” It does not appear that the hearing set for April 3, 1931, was ever held; but on April 7, 1931, the defendant gave bond in the sum of $1500, “conditioned as follows: If the said J. H. Lomax, defendant, shall be forthcoming to answer to the complainant’s claim, or shall abide by the order and decree of the court, then this bond to be void, else of full force and virtue.” The-remainder of the instrument relates only to a renunciation of homestead and exemption, and recites that neither the principal nor surety in the bond has ever taken any homestead or exemption under the laws of the State, the United States, or elsewhere. On September 11, 1931, Lomax, in defense to this proceeding, filed what he denominated as a “plea to the jurisdiction, motion to vacate service of defendant of the rule nisi, and motion to vacate the order allowing the writ of ne exeat to issue, and fixing bond, and motion to discharge and cancel the bond given in said case.” He alleged that at the time he was served with the plaintiff’s petition he was confined in Bibb County jail after having been arrested in the State of Tennessee
The court overruled the motion to set aside the return of service in the attachment for contempt, and to dismiss the writ of ne exeat, and to discharge the bond therein. J. EL Lomax excepted.
Two questions are presented to us for adjudication. Either of them is determinative of the case. The first question (considered in point of the priority of their occurrence in the progress of the litigation) is whether legal service of process in a civil proceeding can be had upon a non-resident, citizen of Pennsylvania, who has been brought by force against his will from beyond the limits of this
However, if the refusal to set aside the entry of service, thereby holding that the court had jurisdiction of the matter, were correct, we are of the opinion that the court erred in the ruling with regard to the issuance of the writ of ne exeat regno and the refusal to cancel the appearance bond and relieve the surety. This raises the question as to whether under the law of Georgia, as is the case in England, a writ of ne exeat may issue after there has been a final judgment in the cause to which it is applicable. Tt may be conceded that at the time of the passage of the act of the General Assembly approved February 25, 1784 (Cobb's Digest, 721), declaring that laws and practices theretofore prevailing in England shall be of full force and effect until “repealed, amended, or otherwise altered by the legislature,” writs of ne exeat, in conformity to the English common law, were granted after a final judgment had been rendered. They were never issued in advance of a judgment. But that provision was only to be of force in Georgia until changed by law. When the provision was changed, the common law of England fell and was superseded by the Georgia statute, which is to be construed by its own terms. Whatever may have been the origin of our present law, it is now a statute of Georgia adopted by the General Assembly by the adoption of the Code. Central of Georgia Railway Co. v. State, 104 Ga. 831 (2) (31 S. E. 531, 42 L. R. A. 518). Sections 5459-5464 of the Code deal with the subject of ne exeat; and as will be seen, all of the five instances stated in § 5459 on which the writ may issue contemplate only action in advance of a final judgment. There is no reference to any right to the issuance of the writ after a final judgment has been obtained. Since the common law permitted the issuance of the writ only after final judgment, and the Georgia law provides for it only in instances which' come before a final judgment, it is difficult to perceive how there could be a more complete change or one which would more completely obliterate the antecedent common law upon the subject. Under § 5459 the writ issues “to restrain a person from leaving the jurisdiction of the State, and may be granted in the following cases: 1. In favor of an obligor or promisor or partner, against his coobligor or joint promisor or copartner equally or partly responsible
The court erred in refusing to cancel the bond given by the defendant in this case, and to discharge the surety. In May v. May, 146 Ga. 521 (91 S. E. 687), this court held: “The writ of ne exeat issues to restrain a person from leaving the jurisdiction of the State; and where the principal in a ne exeat bond appears and defends the suit against him for divorce and alimony, and is within the jurisdiction of the court when the final judgment is rendered
But even if it could be held that the English rule prevails, by which the writ of ne exeat regno may be granted after a final judgment in a cause, in order to enforce the judgment instead of to restrain an act in futuro and antecedent to any judgment, it appears from the agreed statement of facts in this case that the judge heard no evidence. He passed upon no evidence. It was held in Fountain v. Tarver, 150 Ga. 638 (104 S. E. 443), that it is presumed that the judge of the superior court acted upon sufficient evidence in ordering the writ to issue. In this case, however, the agreed statement of facts which counsel in open court conceded to be true showed that the judge issued the order for the ne exeat in this case without hearing any evidence at all, and solely on the ex parte petition of the plaintiff. This seems to be error, and perhaps renders the writ void. We have already stated the condition of the bond. This instrument is clearly nothing more than a bond conditioned for the appearance of the defendant at'the hearing mentioned, or whenever the application might be taken up. It was not drawn in conformity to the provisions relating to' ne exeat; and therefore the answer and cross-action of the defendant should have been sustained upon this ground. Judgment reversed.