Roney v. McCall

128 Ga. 249 | Ga. | 1907

Atkinson, J.

(After stating the foregoing facts.)

1. As a general rule, no judgment can be rendered against a person, without appropriate pleadings, and notice, and an opportunity to be heard. In Civil Code, §4720, provision is made for a claimant of funds in the hands of a garnishee to dissolve the garnishment by filing, in the court to which the garnishment is returnable, a “bond with good security in twice the amount of the sum claimed upon said suit, attachment, or judgment, to be approved by said clerk,” etc. It is provided in the Civil Code, §4723, that the “claimant of any fund or property, to whom the same may have been paid or delivered upon the dissolution of the garnishment in the manner before prescribed, shall be a party to all further proceedings upon said garnishment, and judgment shall be had instanter upon said bond for any sums, or for the value of any property that may be found to have been in the hands of said garnishee, liable to the operation of said summons of garnishment.” If the statutes embodied in §§4720, 4723 of the code be complied with by the claimant and the sureties on his dissolving bond, no further pleading or notice is necessary as a condition precedent to a judgment against them after the property is found subject. By the execution of the bond they voluntarily come into the case, submit to the court’s jurisdiction, and must abide by the action of the court. Having come into the case upon their own motion, if the property is found subject judgment may be entered summarily against the claimant and'the surety, in terms of the bond. It is only a statutory bond, however, that will dissolve a garnishment. Fitzgerald Military Band v. Colony Bank, 115 Ga. 790. A judgment should not be entered summarily against the surety, if the bond be not a statutory bond. The right to be heard is one which the law will not disregard, and summary judgments against sureties on statutory bonds are allowed only because the surety voluntarily comes into the case and by express stipulation agrees to be bound by the judgment therein. If the bond be not in compliance with the statute, the payee therein must proceed thereon as in the case of any other contract.

The bond which was offered by the claimant in this case appears upon its face to be for the dissolution of the garnishment pending in the superior court of Sumter county. The caption recites “Sumter county,” and the body expressly states that the proceeding is pending in “said county;” which means Sumter county. The bond is executed in the presence of, and approved by, the clerk of the superior court of Sumter county. The memorandum on the back of the bond, made by claimant’s counsel, was no part of the surety’s contract. Under these conditions, whatever may be said of the bond as a common-law bond, it can not be maintained as a statutory bond, under the sections of the code referred to. The statute requires that the bond be approved by the clerk of the court where the garnishment proceeding was pending. This bond was approved by the clerk of the superior court of Sumter county, not by the clerk of the superior court of Brooks county, where the garnishment suit was pending. The bond recites that the case to which it referred was pending in Sumter county, not in Brooks county. By its terms there was no agreement to be bound by any judgment to be rendered in Brooks county. The surety’s liability is one of strict law and can not be extended by implication. Civil Code, §2968; Price v. Carlton, 121 Ga. 23, and cit. To hold this bond applicable to a case in Brooks county would be contrary to the express terms of the bond. From what is said it follows that the superior court of Brooks county was without jurisdiction to render the summary judgment of which complaint is made. Being without jurisdiction, the judgment was void and the property of the defendant could not be sold under the execution based thereon.

2. Inasmuch as the void execution had been levied upon the property of the plaintiff in error, it appears that he had a complete remedy at law by affidavit of illegality, and the court did not err in refusing the injunction. See, in this connection, Park v. Callaway, ante, 119, and cit.

Judgment affirmed.

All the Justices concur.