(Orig. Code 1863, § 4624; Code 1868, § 4648; Code 1873, § 4746; Code 1882, § 4746; Penal Code 1895, § 935; Penal Code 1910, § 960; Code 1933, § 27-904; Ga. L. 1943, p. 282, § 1; Ga. L. 1982, p. 1224, § 1; Ga. L. 1986, p. 1588, § 1; Ga. L. 1987, p. 1342, § 1; Ga. L. 1992, p. 2933, § 1; Ga. L. 1997, p. 973, § 2.)
Law reviews.- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 106 (1997).
JUDICIAL DECISIONS
Constitutionality.
- Former Code 1933, §§ 27-904 and 27-906 (see O.C.G.A. §§ 17-6-31 and17-6-71) fail to describe the procedure by which the surety may be relieved as therein provided for after final judgment, are not on this account void for uncertainty and indefiniteness as the statutes name the court in which the relief must be had as being the same court rendering the final judgment, and make it mandatory upon such court to relieve the surety, thus requiring the court to act in such manner as a court may properly act to effectually grant such relief. To the extent these sections are silent, former Code 1933, § 3-105 (see O.C.G.A. § 9-2-3) may be resorted to. Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945).
This section did not offend Ga. Const. 1945, Art. III, Sec. VII, Para. VIII (see Ga. Const. 1983, Art. III, Sec. V, Para. III) which inhibited the passage of legislation containing more than one subject matter or including matter not referred to in the caption. State v. Resolute Ins. Co., 221 Ga. 815, 147 S.E.2d 433 (1966).
More than one subject matter in bail legislation.
- Georgia Laws 1943, p. 282, while amending former Code 1933, §§ 27-904 and 27-906 (see O.C.G.A. §§ 17-6-31 and17-6-71), which deal with the subject of bail in criminal cases, by providing for service of the forfeiture proceeding and for relief of the surety after final judgment, does not contain more than one subject matter in violation of Ga. Const. 1877, Art. III, Sec. VII, Para. VIII (see Ga. Const., 1983, Art. III, Sec. V, Para. III). Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945).
O.C.G.A. § 17-6-31(d)(2)(A) and (d)(2)(B) are written in the conjunctive and both subparagraphs therefore must be true for that paragraph to apply; i.e., the principal must have given a false name when bound over and then released, and the surety must show due diligence. Raburn Bonding Co. v. State, 244 Ga. App. 386, 535 S.E.2d 763 (2000).
"Fault."
- Since "fault," as used in O.C.G.A. § 17-6-31(e), regarding a surety's liability on a bond, is not a term of art, but is a word of general use; thus, the word is to be given the word's ordinary and everyday meaning. A.A. Prof'l Bail v. State of Ga., 265 Ga. App. 42, 592 S.E.2d 866 (2004).
Since no trial was scheduled for the defendant for more than one year after the date bond was posted and when the only "fault" that could have been attributed to the defendant was filing a conflict letter for the scheduled arraignment, this was insufficient to satisfy the "fault" requirement in O.C.G.A. § 17-6-31(e), and a surety's motion to set aside a bond forfeiture should have been granted. A.A. Prof'l Bail v. State of Ga., 279 Ga. App. 113, 630 S.E.2d 620 (2006).
Surrender privilege exists independent of bond conditions.
- O.C.G.A. § 17-6-31 does not constitute a comprehensive regulation of bail-bonding procedures, but merely establishes the procedure whereby the surety on the bond may accomplish a "surrender" of the principal. Moreover, the privilege of "surrender" exists independent of compliance with the condition of the bond. City of Macon v. Davis, 251 Ga. 332, 305 S.E.2d 116 (1983).
City ordinance regulating release on criminal release bond valid.
- City ordinance which seeks to hold the surety liable on a criminal appearance bond until the fine imposed is collected does not conflict with Georgia case law, is authorized by O.C.G.A. § 36-32-4, and does not conflict with O.C.G.A. § 17-6-31. City of Macon v. Davis, 251 Ga. 332, 305 S.E.2d 116 (1983).
Bonding company may arrest or recapture principal. Garner v. Mears, 97 Ga. App. 506, 103 S.E.2d 610 (1958).
Bonding company liable for torts committed while recapturing principal
- If, in the course of such procedure the bail's employee so authorized should commit an unlawful assault, illegal entry, or other like tort, this would not take the act of the employee outside the scope of employment so as to relieve the bonding company in an action against the company for damages resulting therefrom. Garner v. Mears, 97 Ga. App. 506, 103 S.E.2d 610 (1958).
Deputy sheriff may receive surrender of the principal. Ward v. Colquitt, 62 Ga. 267 (1879).
Arrest by unauthorized persons.
- Son of bail bond surety, if the son is not the surety's agent, cannot empower a third person to arrest the principal. Coleman v. State, 121 Ga. 594, 49 S.E. 716 (1905).
Privilege of surrender exists independently of compliance with the condition of the bond and even before the time for compliance. American Sur. Co. v. State, 50 Ga. App. 777, 179 S.E. 407 (1934).
Intent to surrender principal must be expressed and understood.
- Producing or presenting a principal in court is not all that is required to discharge the obligation and relieve securities from their liability under a criminal bond. In order for a surrender of the principal in open court to be effective, the attention of the court must be called to the presence of the defendant principal, and the intention to surrender must be definitely expressed and understood. Perkins v. Terrell, 1 Ga. App. 250, 58 S.E. 133 (1907); American Sur. Co. v. State, 50 Ga. App. 777, 179 S.E. 407 (1934).
Duty to produce principal for lesser included offenses.
- Bail for a prisoner to answer one offense includes the duty to produce the prisoner for a lesser offense contained in the greater. Wells v. Terrell, 121 Ga. 368, 49 S.E. 319 (1904).
No discharge on habeas corpus when certiorari overruled.
- Accused surrendered by principal to sheriff, after overruling of certiorari, has no right to discharge on habeas corpus since ruling is a final judgment subject to review. Franco v. Lowry, 164 Ga. 419, 138 S.E. 897 (1927).
Relief of surety after forfeiture upon surrender of principal and payment of costs.
- This section made it mandatory upon the court to relieve the surety from liability after final judgment has been entered when the surety has surrendered the principal to the court and paid all the costs in the forfeiture proceeding. Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945); Troup Bonding Co. v. State, 121 Ga. App. 25, 172 S.E.2d 476 (1970).
Surety not discharged by pretrial diversion program that was not "court ordered".
- Bondsman was not released from liability on the bondsman's bond for an accused shoplifter under O.C.G.A. § 17-6-31(d)(1)(C) because of the shoplifter's entry into a pretrial diversion program because the statute applied only to "a court ordered" program, and in this case, the trial court had no involvement in the program. The enactment of O.C.G.A. § 15-18-80, allowing prosecutors to create pretrial diversion programs, did not implicitly amend § 17-6-31(d)(1)(C) or eliminate court-ordered programs. AA-Prof'l Bail Bonding v. Deal, 332 Ga. App. 857, 775 S.E.2d 217 (2015).
Forfeiture judgment not vacated upon surrender of principal.
- While this section made it mandatory to relieve the surety from liability after final judgment when the surety had surrendered the principal and paid all the costs in the forfeiture proceeding, the final judgment was not vacated and set aside upon surrender of the principal. Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945); O.K. Bonding Co. v. State, 151 Ga. App. 711, 261 S.E.2d 448 (1979).
Failure of surety to act with due diligence.
- Trial court did not abuse the court's discretion in issuing a judgment of forfeiture against the surety upon consideration of evidence showing that the surety failed to exercise due diligence in locating the principal after finding that the principal had used an alias. Delta Bail Bonds v. State, 245 Ga. App. 491, 538 S.E.2d 146 (2000).
Surety acted with due diligence.
- Bond forfeiture was properly set aside under O.C.G.A. § 17-6-31(d)(2) because the surety acted with due diligence in investigating the principal's identity since the surety reasonably relied on the county jail to alert the surety as to aliases, the surety verified the bond application information, and the surety had no access to other databases regarding aliases. State v. Anytime Bail Bonding, Inc., 301 Ga. App. 832, 690 S.E.2d 193 (2009).
Relieving surety from liability on bond.
- Last provision of this section referred to a final judgment on the forfeiture of an appearance bond, and does not mean that the sureties can be relieved from liability on a bond after a final disposition of the criminal case against the principal upon the production of the principal after the criminal case is disposed of. Crow v. State, 90 Ga. App. 340, 82 S.E.2d 722 (1954).
Release of surety was error.
- Trial court erred in releasing the surety, pursuant to O.C.G.A. § 17-6-31(d)(2), when the court improperly admitted two unauthenticated documents and expert opinion testimony as to the true name of the principal since this determination did not require the drawing of a conclusion beyond the ken of the average layman; thus, the surety failed to present any competent evidence of the principal's true name and failed to show that the principal was incarcerated under a false name. State of Ga. v. A 24 Hour Bail Bonding, 280 Ga. App. 463, 634 S.E.2d 99 (2006).
Rearrest for higher offense stemming from same transaction discharges surety.
- Surety is discharged when the principal is rearrested under indictment for a higher grade of offense growing out of the same transaction for which the principal was originally arrested. Benson v. Harris, 19 Ga. App. 328, 91 S.E. 491 (1917).
Principal rearrested for separate and distinct offense.
- Surety is not discharged when the principal is rearrested for a separate and distinct offense unless the principal's custody by the state prevents the surety from surrendering the principal at the appointed time. Cooper v. Brown, 10 Ga. App. 730, 73 S.E. 1101 (1912); Benson v. Harris, 19 Ga. App. 328, 91 S.E. 491 (1917).
Discharge of surety.
- Surety is discharged when the surety before final judgment at the next term produces the principal. Boswell v. Colquitt, 73 Ga. 63 (1884).
Surety is discharged even if bail or surety's agent must recapture the principal. Clark v. Gordon, 82 Ga. 613, 9 S.E. 333 (1889).
Surety is discharged when principal pays costs of forfeiture and produces a new bond which is accepted. Fleming v. Smith, 10 Ga. App. 701, 73 S.E. 1074 (1912).
Bond forfeiture improper.
- When a criminal defendant was charged in municipal court with misdemeanor traffic offenses, demanded a jury trial, requiring transfer of the defendant's case to state court, and filed pre-trial motions, all resulting in a failure to try the defendant on the charges within one year of the defendant's bond, the surety on the defendant's bond was not liable when the defendant did not appear because the defendant's exercise of the defendant's rights to a jury trial and to file pre-trial motions was not "fault" under the provisions of O.C.G.A. § 17-6-31(e); thus, the trial court abused its discretion when it denied the surety's motion to set aside its bond forfeiture order. A.A. Prof'l Bail v. State of Ga., 265 Ga. App. 42, 592 S.E.2d 866 (2004).
Discharge of surety except as to costs.
- If, pending appeal of forfeiture, the principal is tried and acquitted, the surety is discharged except as to costs. Williams v. McDaniel, 77 Ga. 4 (1886).
Surety not discharged by postponement of trial. Paris v. State, 25 Ga. App. 707, 104 S.E. 510 (1920).
Failure of the district attorney to apply for requisition papers does not discharge surety. Paris v. State, 25 Ga. App. 707, 104 S.E. 510 (1920).
Surety not discharged by tender of additional bail when unapproved and unaccepted. Pittman v. Dorsey, 25 Ga. App. 596, 103 S.E. 854 (1920).
When surety brings the principal into court and arranges a special date for trial and is surety on a separate bond for principal's appearance at such trial, surety is not discharged. Bird v. Terrell, 128 Ga. 386, 57 S.E. 777 (1907).
What constitutes discharge for purposes of exonerating surety.
- Bare verbal permission given by the court to the principal after entering a plea of guilty, to depart and return later in the day to receive sentence, is not a legal discharge, and will not exonerate the surety from the obligation under the recognizance. American Sur. Co. v. State, 50 Ga. App. 777, 179 S.E. 407 (1934).
Principal on active military duty.
- When the bondsman was prevented from performing because the principal returned to duty with the Army in Germany, the bondsman performance was excused; no judgment should have been entered on the bond in the first place and no gratuity was involved in remitting the bond because the contract was unenforceable. Raburn Bonding Co. v. State, 244 Ga. App. 386, 535 S.E.2d 763 (2000).
Forfeiture by alien.
- As an alien who suffered a bond forfeiture for failing to appear at the alien's arraignment on child cruelty charges was not an individual on active military duty, the alien could not rely on the holding in Raburn Bonding Co. v. State of Ga., 244 Ga. App. 386; 535 S.E.2d 763 (2000) as a basis for an argument that the forfeiture of the alien's bond should not have been allowed. Gomez-Ramos v. State, 297 Ga. App. 113, 676 S.E.2d 382 (2009).
Mistake of fact causing surrender of the principal will not affect the question of the surety's discharge. Wiggins v. Tyson, 112 Ga. 744, 38 S.E. 86 (1901).
When the surety gives assistance to police officials which contributes to the arrest of the fugitive defendant and initiates an action to surrender the defendant to the superior court, the surety should be relieved of the penalty on forfeiture of the bond. Troup Bonding Co. v. State, 121 Ga. App. 25, 172 S.E.2d 476 (1970).
When the principal pleads guilty, and fails thereafter to appear to abide sentence, in the absence of a surrender of the principal by the surety, or the principal's discharge by the court, the surety is liable upon the recognizance. American Sur. Co. v. State, 50 Ga. App. 777, 179 S.E. 407 (1934).
Surrender of principal following payment for nonappearance.
- Surety had no standing either in law or equity to reclaim any portion of the funds paid over to satisfy a judgment entered against the surety for nonappearance of the principal, even though the principal was subsequently arrested and brought to trial. American Druggists' Ins. Co. v. Harris, 177 Ga. App. 481, 339 S.E.2d 759 (1986).
Motion to vacate a judgment on the ground that the bond is insufficient to require the defendant's appearance is maintainable without prepayment of costs. Hardwick v. Shahan, 30 Ga. App. 526, 118 S.E. 575 (1923).
Continuance properly denied.
- Court did not abuse the court's discretion in failing to grant a bondsman a continuance to secure the defendant's appearance, although the bondsman asserted that the bondsman had been unable to produce the defendant in court due to the actions of certain law enforcement officials, when the only evidence offered in support of this assertion consisted of the bondsman's testimony that "we were held off for over thirty days going into Florida to keep from messing up ongoing investigations some other people had ... ." Taylor v. State, 194 Ga. App. 245, 390 S.E.2d 601 (1990).
Cited in Bates v. State, 4 Ga. App. 486, 61 S.E. 888 (1908); Robinson v. Brown, 146 Ga. 257, 91 S.E. 31 (1916); Jordan v. State, 41 Ga. App. 779, 154 S.E. 725 (1930); McCook v. Long, 193 Ga. 299, 18 S.E.2d 488 (1942); Arnold v. State, 92 Ga. App. 647, 89 S.E.2d 556 (1955); O.K. Bonding Co. v. Carter, 133 Ga. App. 32, 209 S.E.2d 717 (1974); Foster v. State, 136 Ga. App. 201, 220 S.E.2d 751 (1975).
OPINIONS OF THE ATTORNEY GENERAL
Bondsman's powers of arrest.
- If the accused refuses to surrender, the bondsman can seize and hold the accused in order to make delivery. The bondsman's rights include broad powers of pursuit into another state, arrest, and detention. No process is needed as the bondsman's powers arise, not from the powers of the state, but from the relationship of principal and bondsman. 1970 Op. Att'y Gen. No. U70-78.
No refund when principal surrendered after forfeiture.- This section provided for the relief of a bondsman from liability prior to the time that the bondsman pays the forfeiture to the county. After payment to the county of a final judgment on an appearance bond forfeiture, the bondsman was not entitled to a refund of the forfeiture even though the bondsman later surrendered the principal to county authorities. 1976 Op. Att'y Gen. No. U76-28.
Release of principal who is serving sentence on another charge.- District attorney lacks authority to grant release to a surety on a bail bond when the principal is serving a sentence on another charge. 1969 Op. Att'y Gen. No. 69-432.
RESEARCH REFERENCES
Am. Jur. 2d.
- 8A Am. Jur. 2d, Bail and Recognizance, §§ 101 et seq., 141, 152.
C.J.S.- 8 C.J.S., Bail; Release and Detention Pending Proceedings, §§ 191, 215 et seq.
ALR.
- Practicing or pretending to practice law without authority as contempt, 36 A.L.R. 533; 100 A.L.R. 236.
Surrender of principal by sureties on bail bond, 73 A.L.R. 1369.
Negotiable instruments law as affecting rights as between holder of check or draft and attaching creditor, receiver, assignee for creditors, or administrator of drawer whose rights attached before presentment, 84 A.L.R. 412.
Death of principal as exoneration, defense, or ground for relief, of sureties on bail or appearance bond, 63 A.L.R.2d 830.
Bail: effect on surety's liability under bail bond of principal's subsequent incarceration in other jurisdiction, 33 A.L.R.4th 663.
Bail: effect on surety's liability under bail bond of principal's subsequent incarceration in same jurisdiction, 35 A.L.R.4th 1192.
PART 2 PROFESSIONAL BONDSMEN
Cross references.
- Penalty for participation in bail bond business by elected state official, § 45-11-8.