Johnston v. Sheppard , 22 Ga. App. 206 ( 1918 )

Harwell, J.

(After stating the foregoing' facts.) “A judgment can not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as matter of form.” Civil Code, § 5960; Merritt v. Bagwell, 70 Ga. 585; Steers v. Morgan, 66 Ga. 555; Artope v. Barker, 74 Ga. 465; Tietjen v. Merchants National Bank, 117 Ga. 501 (43 S. E. 730); Davis v. Bray, 119 Ga. 220 (46 S. E. 90); Sweat v. Latimer, 119 Ga. 615 (46 S. E, 835); Ayer v. James, 120 Ga. 578 (48 S. E. 154). A verdict and judgment for a larger amount than that sued for is not for that reason void. It is a mere irregularity. Philmon v. Marshall, 116 Ga. 811, 812 (43 S. E. 48); Buice v. Lowman Mining Co., 64 Ga. 769 (2); Blain v. Hitch, 70 Ga. 275 (3). The surety on a bond given by a.defendant in an action of trover for the eventual condemnation money is bound by the judgment against the defendant, and can not, after judgment, raise any question which could have been raised by the principal before judgment. Waldrop v. Wolff, 114 Ga. 610 (40 S. E. 830); Jackson v. Guilmartin, 61 Ga. 544; Thomas v. Price, 88 Ga. 533 (15 S. E. 11); Holmes v. Langston, 110 Ga. 861 (36 S. E. 251); Hogan v. Scott, 146 Ga. 126 (90 S. E. 863).

An irregularity in the judgment apparent on the face of the record may be corrected. Latimer v. Sweat, 125 Ga. 475 (3), 477 (54 S. E. 673), and cases cited. A surety on a bond is not liable for more than the penalty in the bond vdth interest thereon. Westbrook v. Moore, 59 Ga. 204. Judge Bleckley in this case, said:. “Possibly a bond with the prescribed condition would have been valid if no penal sum whatever 'had been expressed therein, and, if valid at all, it would have been good to the extent of the whole recovery against the principal; but here is a bond' in which the security has limited his undertaking by a definite expression of the amount. He stands for eighty dollars only. The officer might not have^been obliged to accept such.a bond, but he did accept it, and it contains the security’s contract and the money measure of his liability. Perhaps, 'without such a limitation as to amount, he would not have signed it. We do not know of any instance in which more than the penalty of a bond can be recovered of a security. The Code, section 3575 [Civil Code, § 5940], properly construed, does not contemplate anything of the.kind. It provides for a less, not for a greater recovery.” See also Witt v. Nesar, 145 Ga. 675 (89 S. E. 747). The plaintiff is not re: stricted however, in his recovery to the amount mentioned in the bond so far as the defendant, the principal in the bond is concerned. Phillips v. Taber, 83 Ga. 565, 568 (10 S. E. 370). In the Phillips ease, as to the surety, the excess in the judgment above the penalty in the bond was written off by the plaintiff.

The whole judgment will not be set aside because of error as to a part thereof, where it can b.e determined from the record how .much is erroneous. Jones v. Findley, 84 Ga. 52 (10 S. E. 541); Latimer v. Sweat, supra.

Under- the principles of law stated in the foregoing authorities, the judgment against the principal was properly entered for the full amount of the verdict. The surety in the trover bond was bound by the verdict against the principal to the extent of the penalty in the bond, $330, with interest from the date of the judgment. The court should, on motion timely made by the surety, have corrected the judgment accordingly. Direction is .therefore given that the sum of $11.50 be written off from the principal sum recovered against the sureties on the- bond, and that the interest recovered against the sureties be also corrected, to correspond with this reduction of the principal, and, as the plaintiffs in error have obtained a material modification of the judgment against them, it is directed that the cost of the writ of error be taxed against the defendants in error.

Judgment affirmed with direction.

Broyles, P. J., and Blood-worth, J., concur.