Carlan v. Fidelity & Casualty Co. , 55 Ga. App. 271 ( 1937 )

Gtjerry, J.

1. The sheriff of Jackson County and the surety on his official bond may be sued on such bond in Stephens County, for an alleged wrongful act committed in Jackson county colore officii by such sheriff or his lawful deputy, where it is alleged that such surety has an office, agent, and place of business in Stephens County. Carlan v. Fidelity & Casualty Company of New York, 183 Ga. 715 (189 S. E. 527). In such action it is not necessary to allege that the surety is not a resident or subject to suit in Jackson County. Carlan v. Fidelity & Casualty Co., supra.

2. In a suit on a sheriff’s official bond, brought jointly against such sheriff and the surety on said bond, for an alleged wrongful act committed by him or his lawful deputy colore officii, “the fact that a tort by the officer is disclosed does not render the action one ex delicto.” Copeland v. Dunehoo, 36 Ga. App. 817, 820 (138 S. E. 267). In such suit, where actual damages are alleged in a large sum, greater than the amount of the bond, and there is a prayer to recover “exemplary or punitive damages . . in addition to the actual damages herein sued for,” and a special demurrer is filed thereto because of a misjoinder of causes of action, the judge should have sustained the same. Punitive damages or smart money is recoverable “when little or no damage is actually sustained.” We are of the opinion that the court erred in overruling this demurrer to the petition which contained the above allegation. Code, §§ 20-1405, 89-421; Cantrell v. National Surety Co., 46 Ga. App. 202 (167 S. E. 314); Spires v. Spires, 30 Ga. App. 228 (117 S. E. 255).

3. A suit on a sheriff’s official bond, .brought jointly against such sheriff and his surety, which bond was given by the sheriff as sheriff of a certain county, can hot be amended by adding thereto a count setting forth liability against such sheriff and his bondsman on a separate and distinct bond given as sheriff of the city court of such county. Mayor &c. of Brunswick v. Harvey, 114 Ga. 733 (40 S. E. 754).

4. Under the above rulings the court properly sustained the alleged amendment, improperly sustained the demurrer to the jurisdiction of the superior court of Stephens County, and improperly overruled the special demurrer that the petition contained a misjoinder of causes of action.

Decided February 20, 1937. Hamilton Kimzey, Owen & Gross, for plaintiff. Clifford Pratt, C. M. McClure, J. 8. Ayers, for defendants.

Judgment reversed on both bills of exceptions.

Broyles, G. J., and Mac-Intyre, J., concur.