Warren v. Slaton , 14 Ga. App. 734 ( 1914 )

Roan, J.

The bond was forfeited by the county court on July 11, 1913, and the scire facias was issued by the clerk and served on the security on the bond on the same date, returnable “on the fourth Monday in July next.” Section 962 of the Penal Code reads as follows: “The clerk shall issue a scire facias on all forfeited bonds, recognizances, or other obligations, returnable to the next term of such court, against the principal and his sureties, which shall be served by the sheriff or his deputy, at least twenty days before the return thereof, or, if the party resides out of the county or State, scire facias may be served by publication, as in cases of scire facias to revive ■ judgment. And if, at such return term, no sufficient cause be shown to the contrary, judgment, on motion, shall be entered against such principal and sureties, or such of them as have been served.” Under this section, it was clearly the duty of the clerk to make the scire facias returnable to the next term of the court that would convene at such time as to permit service thereof at least twenty days before the term. It is to be noted that from the date of the forfeiture of the bond on July 11, 1913, to the sitting of the court on July 28, 1913 (when the defendant appeared and pleaded), only seventeen days had elapsed; and as this scire facias was not made returnable to the next term of the court, but was returned to a term of the court which convened less than twenty days from the date of the forfeiture of the bond, it was not legally returned,' and the court to which it had been thus illegally returned had no power to change the paper by ordering that it he made returnable to a time or place different from that expressed in the rule nisi, but another or new scire facias should have been issued. See Wright v. State, 51 Ga. 524; Bird v. Terrell, 128 Ga. 386 (57 S. E. 777).

As the bond was for $200, and the jurisdiction of the monthly term of the county court, to which the proceeding was made returnable, was limited to amounts not exceeding $100, the county court at that term was without jurisdiction of the subject-matter; and it was contrary to law for the court at a quarterly term (which had jurisdiction of the subject-matter) to allow the process or rule nisi to be amended so as to make the case returnable to the quarterly term. The court to which the rule nisi was made returnable in the first instance being without jurisdiction of the subject-matter, it was without jurisdiction 'to order any amendment or other alteration in the pleadings, which would serve to vitalize them into proper pleadings in a court that did have jurisdiction, so as to allow judgment absolute to be taken at the same term of the court when the amendment was allowed.

This was an effort to forfeit a bond given in order to certiorari a case to the superior court .from a verdict of conviction in the county court, the condition of the bond being to appear at the county court, at the proper -time, "to abide the final order, judgment, or sentence of the superior court in and for said county, in the certiorari” filed in this case. When the certiorari was overruled, the defendant (the principal in the certiorari bond) brought the case to the Court of Appeals, and the judgment of the lower court was affirmed. The judgment of the Court of Appeals having been by proper order made the judgment of the lower court, an effort to forfeit the certiorari bond was then made in the county court. The case was taken to the superior court by appeal, and a judgment of forfeiture was entered in that court. This judgment is assigned as error. As the case must be sent back for another hearing, for reasons hereinbefore stated, should it appear by proper proof on the next hearing of the case that the defendant gave a supersedeas bond when the case was taken'from the superior court to the Court of Appeals, then that supersedeas bond would in effect have transferred the custody of the prisoner from his bail on the certiorari bond to his bail on the supersedeas bond, and there would be left no liability on the certiorari bond, and it would be illegal to forfeit it. See Smith v. Craig, 59 Ga. 883.

Judgment reversed.