3 Ga. App. 348 | Ga. Ct. App. | 1908
Anderson Hill prosecuted Charlie Mason, under the provisions of the act of 1903 (Acts 1903, p. 90), for cheating and swindling. Thereupon Anderson Hill became surety on an .appearance bond of said Charlie Mason. Mason failed to appear
1. The indictment, however, is totally defective, and the surety has the right to plead this fact in the action brought by scire facias to obtain judgment absolute against him. To constitute a violation of the act of 1903, there must be a failure to perform a contract, or to repay an advance made on the faith of the contract. As held in Wilson v. State, 124 Ga. 22, and Watson v. State, 124 Ga. 454, there must not only be a contract, but it must be definite as to time, payment, and amount of payment. It must also appear that the defendant failed and refused to carry out the contract without good and sufficient cause. The indictment in this case sets forth no contract. The indictment is based on failure to perform a contract, but it fails to allege any considera
2. It is insisted by the learned solicitor-general that even if the indictment under discussion is fatally defective, the plaintiff in error ought not to prevail in this case, because the bond in question
3. The plaintiff in error further insists that a verdict should not have been directed in favor of the plaintiff in the court below, because the bond is totally defective, for the reason that the caption of the bond is, “Georgia,--County,” instead off Georgia, Baldwin County, and because the bond failed to allege at. what county- court- and in what county he was required to appear. We hold this contention of the plaintiff in error to be untenable. The bond, as appears bv the record, is attached to the same sheet,.
4. The plaintiff in error further insists that the bond should not have been forfeited and judgment entered against him, because the bond required him to answer to an indictment for the offense of misdemeanor. The argument of counsel for plaintiff in error is that the word “misdemeanor” covers a multitude of crimes, being a general term for criminal offenses of any sort which do not in law amount to felony, and that if the defendant had been indicted for more than one offense and a bond had been entered into by a defendant and á surety, and the defendant did not appear, the State’s attorney could not say in which, case-the bondsman was liable. This may be true. In Rich v. Colquitt, 61 Ga. 197, it was held that “a scire facias to forfeit a recognizance which recited that the principal had been indicted for the offense of. misdemeanor, that he had given the recognizance for his appearance at the city court of Atlanta, to be held.on April 16th,_ 1877, and that the bond had been duly forfeited, described the offense with
The case of Simmons v. State, 106 Ga. 358, cited by counsel, is not in point. The rulings in Hampton v. Brown, 32 Ga. 251, Foote v. Gordon, 87 Ga. 277, and Vaughn v. Candler, 113 Ga. 11, are conclusive of the proposition that the use of the word “misdemeanor,” in the bond in this case, is sufficient, and that the use of this term without a more particular description of the offense does not render the bond either insufficient or void. “The description may be entirely general, provided that the offense de
5. While no motion to dismiss the bill of exceptions is made, it is insisted by the solicitor-general, in his brief, that a judgment ■of affirmance should result because the bill of exceptions fails to specify the verdict as being material to a clear understanding of the errors complained of, and counsel insists that the verdict, even if sent up by the clerk, can not be considered by this court. The case of Pyne v. State, 113 Ga. 725, cited by the solicitor-general-in his brief, as authority for his position, was expressly overruled in Atlanta Land Co. v. Austin, 122 Ga. 377. To dismiss the bill of exceptions would be clearly in the teeth of the Civil Code, §5569. Nor will an affirmance result. If it were material to have the verdict before us, it would be the duty of this court, under the provisions of the Civil Code, §5536, to have the clerk of the trial court to transmit a copy of the verdict to this court. As ruled by the court in Andrews v. John Church Co., 1 Ga. App. 562, “under the Civil Code, §5569, the real question . . is whether or not there is such an assignment of error as will enable this court to know what are the specific grounds of complaint, and whether there is enough in the bill of exceptions alone, or in the bill of exceptions and the record taken together, to enable this court to pass upon the questions at issue.” As stated in that case, “there is no difficulty in this case in determining either what errors are complained of, or whether the complaints are justified by law.”
The verdict was not specified as material, nor does it appear in the record; but the judgment was specified and was accordingly sent up, and it purports to contain the verdict. Error is assigned upon the direction of a verdict in favor of the plaintiff; and the presiding judge certified that such a verdict was directed.
In view of what was said in the first division of this opinion, the amount of the verdict would be immaterial. The direction of .any verdict in favor of the plaintiff was error.
Judgment reversed.