114 Ga. 610 | Ga. | 1902
Wolff & Happ, a mercantile copartnership, brought an action of trover against S. A. Waldrop and R. L. Bryans, to recover certain described personalty. The defendants gave the usual eventual condemnation-money bond, with S. L. Hayes as security, and filed their defense to the action, which in effect denied that title tq the property described in the petition was in the plaintiffs. At the trial a nonsuit was granted as to Bryans, and a verdict was returned in favor of the plaintiffs against Waldrop. The court entered judgment on the 'bond against Waldrop as principal and Hayes as security. Waldrop made a motion for a new trial, which was overruled. The case is here upon four bills of exceptions, which for convenience will be referred to as Nos. 1, 2, 3, and 4. Waldrop is the plaintiff in error in No. 1, and error is assigned therein upon the refusal of the court to grant a new trial. Wolff & Happ are the plaintiffs in error in No. 2, and error is assigned in this bill of exceptions upon certain rulings made by the judge during the progress of the trial, as well as upon others made after the verdict was rendered. Hayes sued out No. 3, and he assigns error on certain rulings made by the court after the verdict was' rendered, which he claims affected his right as surety on the eventual condemnation-money bond. In No. 4 Wolff & Happ are the plaintiffs in error, and the questions raised therein are similar to those made in No. 2, which was also sued out by them. As to some of the questions raised in bills of exceptions Nos. 2 and 4, they may be treated as merely cross-bills of 1 and 3, respectively; but as to other questions they are in reality main bills of exceptions, and raise questions which could have been properly brought to this court, even if no bills of exceptions had been sued out by either Waldrop or Hayes. The various assignments of error in the different bills of exceptions raise numerous questions, but under the view we have taken of the case it is not necessary that all of these questions should be decided. Such of them as we deem it neces-' sary to determine in order to dispose of the entire case will be' .dealt with in the opinion which follows.
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The principle deducible from these authorities seems to be that when a bond is given under statutes similar to our bail-trover statute, and the suit is against parties who are bound both severally and jointly to the plaintiff, the purpose of the bond being to secure to the plaintiff either the return of the property or the payment of the eventual condemnation-money in the event he obtains a judgment in the case, the plaintiff is entitled, in the event he recovers in the suit, to a judgment on the bond against any of the persons sued originally in the action, and that inasmuch as the surety upon the bond enters into the contract of suretyship with a full knowledge that the plaintiff may recover against all, or may recover only against some of the defendants sued, he is bound in the event any lawful judgment rendered in the case against any one who was priginally sued is not complied with. The purpose of the bond is to protect the plaintiff and to insure to him the fruits of his recovery against any of the defendants sued, and the undertaking of the surety is to see that the plaintiff is so protected. The surety enters into the contract with a full knowledge of the fact that the case may be lawfully changed by amendment or otherwise, and when the terms of the statute are as broad as ours, and the bond is a substantial compliance with the statute, as in the present case, the
The sureties on a bond given for the eventual condemnation-money in an action of trover, or similar bonds in other legal proceedings, take all the risks that are incident to whatever lawful changes may be made in the proceedings as to parties or otherwise, and a bond which is in effect an undertaking to answer the judgment or decree in a given case binds the surety to answer whatever judgment or decree may be lawfully rendered in that case against one who was a party to the same at the time that the undertaking was entered into by him. In the present case the undertaking of Hayes was to have the property forthcoming to answer whatever judgment was rendered in the case, or to pay the eventual condemnation-money if a judgment for money should be entered; and as a judgment against Waldrop in his individual capacity for a given sum of money was lawfully authorized, Hayes was bound as security for the amount for which the judgment had been rendered against Waldrop. There is an additional reason why in the present case Hayes should not be permitted to raise any question as to the propriety of the nonsuit as to Bryans. He, through his counsel, seems to have invoked the ruling which resulted in the nonsuit, and it would seem that he should not be allowed, at a subsequent stage, of the case, either to question the soundness of the rulings thus
When this case Was heard in this court counsel for Wolff & Happ stated that the clerk, in transmitting the record in the several cases, had in some instances transmitted portions of the record which were not specified, and in other instances had sent up more than one copy of a portion of the record which was specified, when only one copy was specified, and asked that in no event should any costs be taxed against their clients for any part of such unnecessary record. We have not examined the record for the purpose of determining what
Judgments on bills of exceptions designated above as Nos. 1 and 3 affirmed; on bill of exceptions designated as No. £ reversed with direction; writ of error on bill of exceptions designated as No. ^ dismissed with direction.