CULLIFER v. STATE OF GEORGIA

We will refer to Rube Cullifer as the plaintiff and will refer to the State of Georgia as the defendant, which was their respective status in the trial court. The plaintiff signed a bail-bond contract in the Municipal Court of Columbus, Georgia, on January 15, 1957, as surety for Allen Stein, who was charged with the offense of speeding. The plaintiff bound himself firmly to the Governor of the State of Georgia and his successors in office for the penal sum of $25. The bail-bond contract, signed as surety by the plaintiff, was conditioned upon the appearance of the principal Stein in the Municipal Court of Columbus, Muscogee County, Georgia. The bond covered the period from January 18, 1957, to January 21, 1957, at 9:30 o'clock and from day to day and from term to term, then and there for Stein to answer an accusation for the offense of speeding, a misdemeanor. The bail bond contained no agreement that, should the principal fail to appear in the Municipal Court of Columbus, the bond would be returnable to either the City Court of Columbus or the Superior Court of Muscogee County. Thus there is no condition in the bail bond that nonappearance of the principal in the Municipal Court of Columbus could be transferred to the City Court of Columbus. The principal failed to appear in the Municipal Court of Columbus according to the terms of the bail contract although the bond was conditioned only upon the appearance in that court. The bail bond contains no conditions upon which it could be transferred as surety to the City Court of Columbus. After having failed to appear in the Municipal Court of Columbus, the accusation was returned and the principal's name appeared on the docket of the City Court of Columbus for March 11 1957, showing that the defendant was charged with the offense of speeding. The principal failed to appear in the City Court of Columbus on the date of the call of the docket and the Solicitor of the City Court of Columbus moved for forfeiture of the bond which was conditioned as was stated above upon the appearance of the principal in the Municipal Court of Columbus and not in any other court. The forfeiture was granted by the Hon. A. J. Land, Judge of the City Court of Columbus, and the Clerk of the City Court of Columbus duly entered the forfeiture upon the minutes of the said court. Thereafter, a scire facias was issued from the City Court of Columbus upon a bond returnable to the Municipal Court of Columbus. The principal was thus notified that if he failed to appear as principal before or upon the call of the docket at the next succeeding term of the City Court of Columbus, a judgment absolute would be entered upon the scire facias. The defendant failed to appear in the City Court of Columbus in accordance with this notice and a judgment absolute was rendered against him by that court on the bond in question. The plaintiff filed his motion to set aside this judgment absolute in the City Court of Columbus in which he set forth the facts hereinbefore detailed and prayed that the judgment be set aside because it was void in that it was based on a bond requiring him to appear in the Municipal Court of Columbus and that his failure to appear in the City Court of Columbus was not such a breach of the conditions of the bond as to authorize that court to enter the judgment sought to be set aside.

The defendant filed a three-count general demurrer which was sustained substantially upon count 2 as follows: "Said motion shows no reason in law or equity why said judgment should be vacated and set aside for the reason that said motion shows upon its face that the alleged defect in said bond as shown by the said motion in the record in said case, was not urged or taken advantage of before final judgment and for said reason any defect alleged to show upon the face of said bond was not a defect showing in the record of said case." The case is now before this court on exception to the judgment of the trial court sustaining the demurrer and dismissing the plaintiff's motion.

GARDNER, Presiding Judge.

It is our opinion that a bond made returnable to the Municipal Court of Columbus only cannot be transferred to any other court. This being true, the judgment against the plaintiff as surety for the principal Stein is not meritorious. See in this connection Code (Ann.) § 27-906 and Walker v. Wells, 17 Ga. 547, 551 (4) (63 Am. Dec. 252). It is clear to us that the petition alleged sufficient facts to show that the bond forfeited was void upon its face and that the judgment entered thereon, of which complaint is made here upon the motion for a judgment absolute upon scire facias to forfeit recognizance was void on its face. The motion to set aside was properly made. White v. Brown, 12 Ga. App. 275 (1) ( 77 S.E. 105) states as follows: "This being a motion to set aside a judgment absolute, rendered in a proceeding to forfeit a criminal recognizance, and it appearing from the allegations of the petition that scire facias was duly issued and served upon the movants, and that they failed to appear and show why the judgment absolute should not be granted, it was too late to urge, as ground for setting aside the judgment, any reason which might have been urged before its rendition, unless the judgment was for some reason absolutely void." See also in this connection Regopoulas v. State, 116 Ga. 596 (1) ( 42 S.E. 1014) and Jackson v. Jackson, 199 Ga. 716 (2) ( 35 S.E.2d 258).

The petition plainly sets forth the bond contract showing that the bond was conditioned upon the appearance of the principal in the Municipal Court of Columbus and not in the City Court of Columbus. On a motion for a judgment absolute upon scire facias to forfeit recognizance, a bond contract is a necessary part of the record, and when it is included in the record as it is in the case before us, no aliunde evidence is required to determine that a judgment thereon would be absolutely void. Such a defect is not amendable. Hardwick v. Shahan, 30 Ga. App. 526 (6) ( 118 S.E. 575), also holds as follows: "The bond on its face was insufficient to require the defendant's appearance at the court which forfeited it, and, the judgment not conforming the truth, in reciting the existence of a proper bond, the court was not bound to refuse the relief merely because of neglect by the movants in not defending against the forfeiture, prior to the judgment absolute."

The order and judgment of the trial court sustaining the general demurrer and dismissing the petition is reversible error.

Judgment reversed. Townsend and Carlisle, JJ., concur.