It shall be lawful to enter judgment against principal and sureties at the same time, as in cases of appeal, in all cases in law or equitable proceedings when a bond has been given by the losing party conditioned to pay the eventual condemnation money in the action; and it shall not be necessary to bring an action upon the bond.
(Ga. L. 1893, p. 131, § 1; Civil Code 1895, § 2978; Civil Code 1910, § 3550; Code 1933, § 103-209; Ga. L. 1982, p. 3, § 10.)
Cross references.- Discharge of parties to commercial paper, § 11-3-601 et seq.
JUDICIAL DECISIONS
Prior to section, suit against sureties was required.
- Prior to the adoption of this section, in order to obtain judgment against sureties on bonds of losing parties in equitable proceedings, conditioned to pay the eventual condemnation money, it was necessary to bring suit on the bond. Offerman & W. R.R. v. Waycross Air-Line R.R., 112 Ga. 610, 37 S.E. 871 (1901); Miller v. A.M. Watson & Co., 135 Ga. 408, 69 S.E. 555 (1910).
Purpose of this section was to make the judgment so entered against the surety binding to the same extent as a judgment against the surety if rendered in a separate suit on the bond; in other words, that such a judgment should be a substitute for a judgment which might theretofore have been rendered in a separate suit on the bond. Miller v. A.M. Watson & Co., 135 Ga. 408, 69 S.E. 555 (1910).
Judgment may now be entered against surety without suit.
- Under this section, upon the entering of judgment against the principal, it is lawful to sign up judgment against the surety on the condemnation money bond at the same time without the necessity for bringing suit thereon. O'Leary v. Smith, 119 Ga. App. 762, 168 S.E.2d 886 (1969).
Eventual condemnation money bond.
- Prior to Ga. L. 1893, p. 131, § 1, now embraced in this section, it was necessary to bring an independent suit on all bonds given in an equitable proceeding; and since the passage of the Act, judgment can be entered up against the principal and the principal's sureties at the same time in an equitable proceeding only in a case where a bond has been made by the losing party, conditioned to pay the eventual condemnation money in the action. Jordan v. J.A. Callaway & Co., 138 Ga. 209, 75 S.E. 101 (1912); United States Fid. & Guar. Co. v. Tucker, 165 Ga. 283, 140 S.E. 866 (1927).
"Eventual condemnation money" is that which is recovered in the identical case in which the appeal is taken; it is the amount fixed and settled by the judgment or decree of the court in the case. Harrell v. Kutz & Co., 22 Ga. App. 235, 95 S.E. 717 (1918).
If the bond given by the defendants is for the payment of the judgments which may be rendered in the case, it will be treated as a bond for the eventual condemnation money under this section. Harrell v. Kutz & Co., 22 Ga. App. 235, 95 S.E. 717 (1918).
Under this section, while judgment against the sureties on a bond to dissolve an injunction and receivership cannot be entered in the main case, when the bond is conditioned otherwise than for the eventual condemnation money, yet, when the obligation of the bond was conditioned to pay unto the plaintiff whatever sum may be shown to be due the plaintiff under the contract and the liability was not limited to an amount other than that which might be ultimately fixed and settled by the judgment or decree in the case, a summary judgment in the same case against the sureties on the bond was permissible, and an affidavit of illegality, based on the contention that one of the sureties had not had a day in court could not properly be sustained. Smith v. Newsome, 26 Ga. App. 743, 107 S.E. 269 (1921).
An "eventual condemnation money bond" is one wherein makers agree to pay to the payee therein any judgment which the payee may recover against the principal in the suit in which such bond is given. United States Fid. & Guar. Co. v. Tucker, 165 Ga. 283, 140 S.E. 866 (1927).
Under this section, a bond must be an eventual condemnation money bond in order that judgment may be entered thereon in the particular case in which it was given, that is, without an independent suit. Vickers v. Jones, 200 Ga. 338, 37 S.E.2d 205 (1946).
Bond must secure independent liability for which judgment may be taken.
- Since a "condemnation money bond" is given merely as security, necessarily there must be some independent liability that is thus secured, and it must be one for which judgment may be taken against the principal in the identical case, even if the bond had not been given. Vickers v. Jones, 200 Ga. 338, 37 S.E.2d 205 (1946).
Recovery on bond creating only liability must be by independent suit.
- If a bond itself creates the only liability, it is not an eventual condemnation money bond, and a recovery thereon can be had only in an independent suit. Vickers v. Jones, 200 Ga. 338, 37 S.E.2d 205 (1946).
Injunction bond is not an eventual condemnation money bond within the meaning of this section, and a recovery thereon may be had only in an independent suit. Vickers v. Jones, 200 Ga. 338, 37 S.E.2d 205 (1946).
Bond of indemnity.
- See United States Fid. & Guar. Co. v. Tucker, 165 Ga. 283, 140 S.E. 866 (1927).
Judgment may be entered if bond so provides.
- Judge of the superior court did not err in entering up judgment against the plaintiff and the plaintiff's surety upon a bond for the amount of the judgment obtained in the municipal court, which bond was voluntarily given in order to obtain a restraining order upon presentation of the petition for injunction for sanction by the judge and which provided that judgment might be entered thereon as in case of appeal, should the plaintiff fail in the plaintiff's equitable cause for injunction. American Liberty Fire Ins. Co. v. McGlothin, 165 Ga. 173, 140 S.E. 354 (1927).
Sureties on a condemnation money bond must remain silent witnesses to the conflict between the parties to the suit, standing ready to fulfill at the end of the litigation the obligation the sureties have undertaken. Ford v. Herbermann, 125 Ga. App. 87, 186 S.E.2d 501 (1971).
Bail or security takes the fortunes of the principal and is bound equally with the principal by the judgment in the main action. O'Leary v. Smith, 119 Ga. App. 762, 168 S.E.2d 886 (1969).
Where, under former provisions therefor, a tenant arrested an eviction proceeding by giving bond with a surety to the landlord, conditioned for the payment of such sum with costs as may be recovered against the defendant tenant on the trial of the case, the surety took the fortunes of the principal and was bound by whatever judgment was rendered against the principal, even though the surety did not appear and plead and the judgment was by consent of the principal and not of the surety. Ford v. Eskridge, 53 Ga. App. 466, 186 S.E. 204 (1936).
Liability of sureties is absolutely fixed by the judgment against their principal, and the sureties must stand or fall by the result of the surety's defense, such being the express undertaking in the bond. O'Leary v. Smith, 119 Ga. App. 762, 168 S.E.2d 886 (1969); Ford v. Herbermann, 125 Ga. App. 87, 186 S.E.2d 501 (1971).
Notice or hearing not required.
- There is no requirement in this section that the surety be named as a party or be served, or otherwise notified and given an opportunity to be heard. O'Leary v. Smith, 119 Ga. App. 762, 168 S.E.2d 886 (1969).
Under the construction the courts have placed on this section, a surety takes the fortunes of the surety's principal; upon judgment being entered against the principal, it is lawful to enter judgment against the surety at the same time without the necessity of bringing suit. In such instance, the surety cannot complain of lack of notice or opportunity of being heard prior to that judgment. Houston Gen. Ins. Co. v. Stein Steel & Supply Co., 134 Ga. App. 624, 215 S.E.2d 511 (1975).
Surety cannot attack judgment for causes principal could have raised.
- If a judgment has been rendered against a surety by a court of competent jurisdiction, the surety is absolutely bound by the judgment, and will not be heard to impeach or attack the judgment in any way for causes which were or could have been a matter of defense by the principal. O'Leary v. Smith, 119 Ga. App. 762, 168 S.E.2d 886 (1969); Ford v. Herbermann, 125 Ga. App. 87, 186 S.E.2d 501 (1971).
Motion to set aside.
- In a motion to set aside, a surety may make no complaint relative to the merits of the judgment which could have been raised by the surety's principal, but must stand or fall by the result of the principal's defense. O'Leary v. Smith, 119 Ga. App. 762, 168 S.E.2d 886 (1969).
Affidavit of illegality.
- Bail can no more go behind the judgment or attack the judgment by affidavit of illegality after the judgment is duly entered against both the bail and the principal than can the principal. O'Leary v. Smith, 119 Ga. App. 762, 168 S.E.2d 886 (1969).
Finding in main case must fix liability according to terms of bond.
- Even if in a particular case judgment could be entered upon the bond under this section, it is a prerequisite that there be a finding fixing the surety's liability according to the condition in the surety's bond. Jordan v. J.A. Callaway & Co., 138 Ga. 209, 75 S.E. 101 (1912) (bond to dissolve injunction and receivership).
When, as a condition for the grant of an interlocutory injunction against interfering with the possession of land, the plaintiff was required to file a bond to indemnify the defendant for such rentals as the jury on the final trial of the case should find to be due by the plaintiff to the defendant according to such interest as the defendant might be found to have in the land, under the terms of the bond, no recovery could be had thereon without a determination in the cause itself as to the interest of the defendant and the amount of rentals due the defendant by the plaintiff if the defendant had an interest; this is true irrespective of whether or not, in the event of determination of these questions favorably to the defendant, the defendant could summarily enter in the same case a judgment on the bond against the principal and the surety as in cases of appeal, or would have to resort to an independent action. Fender v. Hendley, 196 Ga. 512, 26 S.E.2d 887 (1943).
Intervening surety is concluded by prior judgment.
- Surety on the eventual condemnation money bond given by the defendant in the distress warrant proceeding was concluded by the prior judgment, even though the surety had been allowed to intervene in the distress warrant proceeding. Price v. Carlton, 121 Ga. 12, 48 S.E. 721, 68 L.R.A. 736 (1904).
Binding judgment may be entered after dismissal set aside.
- Under former provisions as to eviction proceedings, after an order of reinstatement of such a proceeding against a tenant, because its dismissal at the same term of court was for want of prosecution, being presumptively proper and reciting that it was entered "for sufficient cause shown," the surety on the bond of the defendant became bound for such eventual condemnation money as might be determined under the evidence at the trial; the surety was not entitled to set aside the final judgment rendered against the surety and the defendant principal on the bond upon the grounds that the order of dismissal terminated the surety's liability as surety and that the order of reinstatement was entered by the consent only of the defendant and without notice to the surety. Ford v. Eskridge, 53 Ga. App. 466, 186 S.E. 204 (1936).
Cited in Wright v. Florida-Georgia Tractor Co., 218 Ga. 824, 130 S.E.2d 736 (1963); DeKalb County v. Georgia Paperstock Co., 226 Ga. 369, 174 S.E.2d 884 (1970).
RESEARCH REFERENCES
Am. Jur. 2d.
- 74 Am. Jur. 2d, Suretyship, § 109 et seq.
ALR.
- Right to judgment against surety where action fails against principal, 5 A.L.R. 594.
Right to and form of judgment against one discharged in bankruptcy in order to sustain attachment or garnishment or to perfect a right of action against one secondarily liable as surety on a bond given to dissolve the same, 81 A.L.R. 81.
Right of surety on bond given to prevent, or secure the release of, attachment, to attack attachment proceedings after recovery by plaintiff of judgment in attachment action, 89 A.L.R. 266.
Right to join principal debtor and guarantor as parties defendant, 53 A.L.R.2d 522.
Conclusiveness and effect, upon surety, of default or consent judgment against principal, 59 A.L.R.2d 752.