Watkins v. Wood, 14 S.E.2d 230

Watkins v. Wood

14 S.E.2d 230

| Ga. Ct. App. | 1941

Check Treatment

Lead Opinion

Where a surety made a deposit with the clerk of the court to obtain a supersedeas for his principal, it was not error for the court to award the deposit to the party prevailing, under the facts of this case.

DECIDED MARCH 5, 1941. REHEARING DENIED MARCH 28, 1941. J. C. Watkins filed a petition against Mrs. M. E. Wood and G. B. Eason, clerk of Applying superior court, alleging as follows: Mrs. Wood filed a petition seeking, by virtue of her ownership of certain lands, to restrain and enjoin Mrs. Isa Smith from interfering with the use of the property, etc., and from remaining on the premises or maintaining her family thereon. The court issued an order, *Page 655 among other things, restraining Mrs. Smith from remaining on the premises. The judge superseded this part of his order by an order as follows: "Whereas heretofore, to wit, on the 11th day of December, 1937, the above-styled cause came on regularly before me to be heard on the interlocutory hearing thereof, and after hearing evidence and argument of counsel a temporary restraining order and injunction was granted by this court in favor of the above-named plaintiffs and against the defendant, Isa Smith; and whereas the said defendant, being dissatisfied with said order and judgment of the court, has tendered her bill of exceptions to the said decision and judgment of the court in said case as above set out, which said case is now pending in the superior court of Applying County, and the defendant has filed a pauper affidavit in terms of the law; and whereas the defendant desires and has made application for an order of supersedeas in said case: It is therefore considered and ordered by the court that a supersedeas be granted, and that the defendant be relieved of complying with only so much of the provisions of said temporary restraining order and injunction as require her to vacate the house and cleared and cultivatable land is concerned, under the following conditions and terms, to wit: that the said defendant, Isa Smith, shall be permitted to remain on in said house and to have the use of the cleared and cultivatable land only on said place, provided the said defendant, Isa Smith, shall within three days from this date execute and file in the office of the clerk of the superior court of said Applying County a good and solvent bond to be approved by said clerk, payable to the plaintiff, Mrs. M. E. Wood, conditioned upon the defendant, Isa Smith, paying to the plaintiff, Mrs. M. E. Wood, the sum of one hundred twenty-five ($125) dollars as the agreed rental value of said property for the period beginning January 1, 1938, and ending December 31, 1938, and also for any damages caused by said defendant to said house and premises during her occupancy thereof, and for the eventual condemnation-money in said case, and all costs of the case, in the event her appeal should be unsuccessful; and provided further, that the said defendant, Isa Smith, shall not cut, use, or injure any of the wood or timber located on said premises, or attempt to use any of the other portion of said premises save and except the said house and cleared and cultivatable land thereon; and provided further, that the said defendant shall not interfere *Page 656 or attempt to interfere with the said Mrs. M. E. Wood, her agents, servants, and employees, in cutting or using any of the timber located on said premises, or otherwise using the uncleared portion of the said premises as she sees fit, or from making any improvements on said premises, or otherwise using all of the other portion of said property, save and except only the house and cleared and cultivatable land on said premises; and provided further, that the said defendant, Isa Smith, shall not injure or destroy any of the property or improvements located on said property described in the plaintiff's petition."

J. C. Watkins deposited with the clerk of the superior court $125 in lieu of the bond required by the order. The Supreme Court reversed that part of the judgment of the lower court restraining Mrs. Smith from remaining on the premises, because it was a mandatory injunction. Watkins alleged that Mrs. Smith's appeal was successful in the respect specified, and that he was entitled to a return of his money.

Mrs. Wood's answer alleged her right to the money deposited under the order of the court, and Eason asked an order directing a disposition of the fund in his hands. By her petition and by order of court, Mrs. Smith was made a party to the proceeding. At the hearing the court ordered that the $125 be paid to Mrs. Wood, and Watkins excepted. The original petition sought nothing more than a restraining order and an injunction, but it contained allegations appropriate to a suit for ejectment and for mesne profits. At the time of the order providing for the supersedeas it was purely an injunction suit. In declaring the conditions on which the supersedeas would be granted, the court had authority to consider phases of the case other than the effect of the ruling on the part of the order superseded. It was proper to take cognizance of the fact that if Mrs. Smith prevailed in reversing the superseded part of the order she could still possibly lose her case as to her claim to the land, and therefore be subjected to dispossession and payment of rent or mesne profits. After the Supreme Court reversed the part of the order which was superseded, the original petition was amended to include a prayer for decree of title in Mrs. Wood and *Page 657 for a writ of possession. By agreement of the parties the rent for 1938 was valued at $125, and this issue was not left to a jury, but the item was included in a judgment against the defendant. A judgment against three bondsmen of Mrs. Smith was issued, based on the verdict against Mrs. Smith, declaring the title in Mrs. Wood and finding her entitled to immediate possession. The evidence on the present issues showed without dispute that the bond was never accepted by the clerk, so that the judgment against the bondsmen is wholly void; and we need not discuss the question whether a judgment could be taken against them without a separate suit, under the facts of this case.

Now we come to the question of interpreting the circumstances of the deposit of the $125 in lieu of the bond. The bond was signed by Watkins in an effort to follow the order of the court. He knew that the conditions of the deposit were the same as those of the bond, though he testified that if the judgment were reversed on the mandatory injunction, he understood he was to get his money back. The object of the supersedeas was to deprive Mrs. Wood of the possession of the land, and to allow Mrs. Smith to remain in possession. This object was accomplished by a deposit of $125 in lieu of the bond. The order is not full and complete as to the contingency of the application of the deposit for rent. On its face it could mean that it should be so applied regardless of the outcome of the case; but to hold that it had such a meaning would not comport with justice or common sense. Our judgment is that the order contemplated that the $125 deposit should be applied to rent if the final judgment in the case resulted in findings so justifying. No point is made as to the proceedings in the instant case. The pleadings and parties make it, in effect, a suit against the principal and the surety, all necessary parties being before the court; so it is unnecessary for us to go into the question whether the condition as to the eventual condemnation-money would cover the rent under the circumstances, or whether a separate suit on the bond would be necessary. The terms of the bond covered the rent, and the judgment for the rent against the principal by agreement bound the surety even though the surety did not consent to it or know about it. He was charged by the order of the court and by the pleadings with the facts sufficient to put him on notice that he would be held liable for the rent under a *Page 658 final judgment in the case. The court did not err in awarding the $125 deposit to Mrs. Wood.

Judgment affirmed. Sutton, J., concurs.

Dissenting Opinion

The bond, represented by the deposit by Mr. Watkins with the clerk of $125 as a cash bond, was a supersedeas bond as to the judgment enjoining the defendant, Mrs. Smith, in the case of Smith v. Wood, 86 Ga. 214 (197 S.E. 246), from remaining on the land, and was conditioned to pay rent for the period of Mrs. Smith's occupancy of the land, and for the eventual condemnation-money and all costs in the event the appeal should be unsuccessful. The bond had reference only to that particular proceeding and that particular judgment of the court, and upon a reversal by the Supreme Court of that portion of the injunctive order enjoining Mrs. Smith from remaining on the land, the bond became functus officio, and there was no liability thereunder. See Franklin v. Kreigshaber, 114 Ga. 947 (41 S.E. 47). The bond was not conditioned to pay any judgment at the final termination of the case. The judgment rendered upon this bond, against Watkins, was void. He was entitled to a return of the money thus deposited. In the suit by him against the clerk and Mrs. Wood, the plaintiff in the former case, the court erred in finding against Watkins, and ordering the money paid to Mrs. Wood.