147 Ga. 773 | Ga. | 1918
1. A ne exeat bond, as provided for by the Civil Code, § 5461, is one for the personal appearance of the defendant at court; and the conditions of the bond are complied with when the principal is present at court, or within its jurisdiction and subject to its process. Freeman v. Freeman, 143 Ga. 788 (85 S. E. 1038); May v. May, 146 Ga. 521, 523 (91 S. E. 687).
(а) Under the facts stated in the certified questions, only a bond for the appearance of the principal could have been lawfully required.
(б) Where a writ required the taking of a bond, not only for the personal appearance of the defendant, but for the payment of the judgment in the suit for alimony, the writ was void. See Loyd v. McTeer, 33 Ga. 37; Alexander v. Bates, 33 Ga. 125, 129; Tucker v. Davis, 15 Ga. 573.
(c) Where the plaintiff in an action for divorce brings suit against a sheriff to recover damages because of his failure to duly execute a writ from the superior court requiring the defendant to execute a statutory ne exeat bond, and such writ is void, the sheriff may avail himself of this fact as a defense to the suit. Civil Code (1910), § 5680.
(d) The foregoing rulings make it unnecessary to decide the questions in paragraphs (d) and (e) of the first inquiry by the Court of Appeals.
2. A suit against a sheriff and his sureties, to enforce a liability against them for failure of the sheriff to obtain from the defendant in a suit for divorce and alimony a ne exeat bond as ordered by the court, does not fall within the class of cases of which jurisdiction is given to the