(Laws 1799, Cobb's 1851 Digest, p. 573; Laws 1817, Cobb's 1851 Digest, p. 206; Ga. L. 1851-52, p. 78, § 1; Code 1863, § 260; Code 1868, §§ 254, 255; Code 1873, § 266; Code 1882, § 266; Civil Code 1895, § 4359; Civil Code 1910, § 4890; Code 1933, § 24-2713; Ga. L. 1941, p. 374, § 1; Ga. L. 1965, p. 419, § 1; Ga. L. 1975, p. 923, § 1; Ga. L. 1981, p. 733, § 2; Ga. L. 2012, p. 173, § 1-9/HB 665.)
Cross references.- Official bonds generally, § 45-4-1 et seq.
JUDICIAL DECISIONSANALYSIS
General Consideration
Authorizing recovery on official bond of superior court.
- To authorize recovery on official bond of clerk of superior court there must be concurrence of breach of duty and of damage sustained because of breach. Dysart v. United States Fid. & Guar. Co., 63 Ga. App. 432, 11 S.E.2d 363 (1940).
When liability of clerk attaches.
- Clerk's liability on bond attaches once clerk accepts illegal bond dissolving garnishment. Spain v. Clements, 63 Ga. 786 (1879).
Liability on bond attaches once clerk negligently damages another by breach of clerk's duties. Collins v. McDaniel & Strong, 66 Ga. 203 (1880).
Clerk's liability on bond attaches once clerk fails to enter attachment on docket. Stewart, Dunholter & Co. v. Sholl, 99 Ga. 534, 26 S.E. 757 (1896).
Clerk's liability on bond attaches once clerk fails to enter materialman's claim of lien. Neal-Blun Co. v. Rogers, 141 Ga. 808, 82 S.E. 280 (1914).
Nonliability of clerk.
- Clerk's liability does not attach for breach of duty as administrator. McNeil v. Smith, 55 Ga. 313 (1875).
Clerk's liability does not attach for failure to record execution when not directed by plaintiff. Broyles v. Young, 19 Ga. App. 294, 91 S.E. 437 (1917).
Cited in Hendrick v. State, 257 Ga. 17, 354 S.E.2d 433 (1987).
Deputy Clerks
Deputy clerk who fails to make oath is de facto officer. Ledbetter v. State, 2 Ga. App. 631, 58 S.E. 1106 (1907).
Deputy clerks as alter ego of clerk.
- O.C.G.A. § 15-6-59 effectively makes deputy clerks the alter ego of the clerk. Zellner v. Ham, 735 F. Supp. 1052 (M.D. Ga. 1990).
In a 42 U.S.C. § 1983 action, the county clerk and other defendants unsuccessfully argued that O.C.G.A. § 15-6-59 established that deputy clerks were "alter egos" of the county clerk and the position of deputy clerk is one for which patronage action is appropriate. A deputy clerk was not a policy maker nor a confidential employee, a deputy clerk's function was largely ministerial and involved mostly tasks of processing documents, a clerk exercised little discretion in job performance, and consequently, political affiliation was not an appropriate requirement for the effective performance of the duties of a deputy clerk. Calvert v. Hicks, 510 F. Supp. 2d 1164 (N.D. Ga. 2007).
Clerk cannot confer authority orally.
- Clerk cannot by oral authority confer power on another, not clerk's deputy, to sign executions in clerk's name during clerk's absence. Biggers v. Winkles, 124 Ga. 990, 53 S.E. 397 (1906).
Deputy clerk may sign process. Goodwyn v. Goodwyn, 11 Ga. 178 (1852); Graves v. Warner, 26 Ga. 620 (1859).
Clerk as necessary party to traverse proceeding.
- Deputy clerk, who made entry of filing attacked by traverse, is necessary party to traverse proceeding. Swift v. Swift, 191 Ga. 129, 11 S.E.2d 660 (1940).
Termination of deputy clerk by court clerk.- Court clerk's termination of a deputy clerk, who had advised the clerk that the deputy clerk planned to run against the clerk for the position of clerk in the upcoming election, did not violate the deputy's free speech rights as guaranteed by the First Amendment. Zellner v. Ham, 735 F. Supp. 1052 (M.D. Ga. 1990).
Deputy court clerk's First Amendment rights were not violated when the deputy was terminated for running against the court clerk in a primary election; under O.C.G.A. § 15-6-59(b), the deputy had the same powers and duties as the clerk and was therefore the type of confidential employee who could be fired for opposing the clerk in the election. Underwood v. Harkins, 698 F.3d 1335 (11th Cir. 2012).
Stigmatizing terminated deputy clerk.- Court clerk's placing of a terminated deputy's separation notice in the confidential files of the Department of Labor did not amount to "stigmatizing" the deputy so as to deprive the deputy clerk of a liberty interest without due process. Zellner v. Ham, 735 F. Supp. 1052 (M.D. Ga. 1990).
Breach of duty.
- Trial court erred in granting summary judgment in favor of a former clerk and a deputy clerk in an inmate's action alleging that they breached their duty to notify the department of corrections of the inmate's amended sentence as required by O.C.G.A. § 42-5-50(a), because the court of appeals previously ruled in the case that the clerks were not entitled to official immunity in their individual capacities for failing to perform the ministerial act of communicating the inmate's sentence to the DOC, and nothing in the record following remand changed that ruling; § 42-5-50(a) is imperative, and the statute's performance is neither discretionary nor dependent upon a direction from the parties at interest. McGee v. Hicks, 303 Ga. App. 130, 693 S.E.2d 130 (2010), aff'd, 289 Ga. 573, 713 S.E.2d 841 (2011).
OPINIONS OF THE ATTORNEY GENERAL
Minimum age of deputy clerk.
- Since the authorization in former Code 1933, § 24-2713 (see now O.C.G.A. § 15-6-59) for appointment of deputies makes a deputy clerk a public officer of this state under former Code 1933, § 89-101 (see now O.C.G.A. § 45-2-1), a deputy clerk of the superior court must be at least 21 years of age. 1958-59 Op. Att'y Gen. p. 43.
Power of deputy clerk to appoint notary public.
- Because former Code 1933, § 24-2713 (see now O.C.G.A. § 15-6-59) provided that the powers and duties of a deputy clerk shall be the same as those of the clerk, a deputy clerk under former Code 1933, § 71-101 (see now O.C.G.A. § 45-17-1.1) may appoint a notary public in the same manner as the clerk; no other person has this authority. 1958-59 Op. Att'y Gen. p. 60.
RESEARCH REFERENCES
Am. Jur. 2d.
- 15A Am. Jur. 2d, Clerks of Court, §§ 3, 41.
C.J.S.- 21 C.J.S., Courts, § 344 et seq.