Caldwell Lumber Co. v. Wright , 22 Ga. App. 411 ( 1918 )

Bloodworth, J.

Certain parties, “suing for the use of the Caldwell Lumber Company,” brought an action against Bryant H. Wright on a supersedeas bond, given in the case of Hutchinson v. Caldwell Lumber Company, which was a' petition for injunction against certain condemnation proceedings. The order authorizing the giving of the bond contained the following: “If the plaintiff will maleé and file with the clerk of Grady superior court, at the time of filing his bill of exceptions, a bond with security approved by said clerk, jointly and severally obligating that in the event said judgment is not reversed,-then said obligors will pay to said Caldwell Lumber Company the sum of $500.00 per month from the date of said judgment to the date the remittitur from the Supreme Court may be made the judgment of the trial court, then, upon the filing and -approval of such bond, the matters in controversy in plaintiff’s petition shall remain unchanged and the present status shall be preserved until said -writ of error is finally disposed of. Should said bond be given and the judgment complained of he reversed, then no recovery upon said bond shall be had; but if said judgment is not reversed, said sum of $500.00 per month shall become collectible as liquidated damages. , If -the plaintiff fails to make and file such bond, then the Caldwell Lumber Company may make and file a bond with security approved by the clerk, jointly and peveijally obligating that, in, the event said judgment is reversed, they will pay to said S. E. Hutchinson all damages he may have sustained on account of their having carried on their condemnation proceedings during the pendency of said cause in the Supreme Court; and, upon the filing and approval of such bond, the defendants shall proceed as if said suit had not been filed.” After reciting the provisions of this order, the bond proceeds as follows: “Now, therefore, we, S. E. Hutchinson, principal, and B. H. Wright, security, do acknowledge ourselves jointly and,severally held and bound unto [the defendants in the injunction suit], their heirs and assigns, in the sum of $500.00 per month, conditioned to pay such sum to the defendants each and every month that the condemnation ’proceedings are delayed by virtue of said cause being carried to the Supreme Court, in the event plaintiff fails in reversing said cause.” The Supreme Court did not reverse the judgment complained of, the remittitur from the Supreme Court was made the judgment of the trial court, and suit was brought on the bond against the surety only, as the principal was a non-resident. A demurrer to the petition 'was filed, certain grounds of which were sustained, and the petition was dismissed. This ruling is assigned as error.

In the order of the judge in the case of Hutchinson ,v. Caldwell Lumber Company, as shown above, the plaintiff was not directed to give a bond, but was fallowed the privilege of giving one, the order reciting, “Iff plaintiff will make and file with the clerk of Grady superior court, at the time of filing his bill of exceptions, a bond with security approved by said clerk, jointly and severally obligating that in the event said judgment is not reversed, then said obligors will pay to said Caldwell Lumber Company the sum of $500.00 per month from the date of said judgment to the date the remittitur from the Supreme Court may be made the judgment of the trial court. . . Should said bond be given and the judgment complained of be reversed, then no recovery upon said bond shall be had; but if said judgment is not reversed, said sum of $500.00 per month shall become collectible as liquidated damages.” (Italics ours.) The plaintiff in that case availed himself of the permission granted him by the court, 'and, with the defendant in error in the instant case, as his surety, voluntarily gave a bond to the' defendants in the former case (the plaintiffs in error in the instant case), “conditioned to pay such sum to the defendants each and every month that the condemnation proceedings are delayed by virtue of said cause being carried, to the Supreme Court, in the event plaintiff fails in reversing said cause.” (Italics ours.) .The trial court had the right to fix the terms upon which the bond was given. Civil Code (1910), § 5502; Prater v. Barge, 139 Ga. 801 (78 S. E. 119); Mills v. Boyd, 146 Ga. 60 (90 S. E. 378). Such a bond as above referred to would be a good voluntary bond. Thompson v. Hall, 67 Ga. 627 (2 a). Hutchinson; as principal, gave the bond sued on, and ¿by reason thereof and under the terms of the order obtáined a supersedeas. The principle stated in the, 2d headnote of the decision in the case of Waycross Air-Line R. Co. v. Southern Pine Co., 111 Ga. 233 (36 S. E. 641), is applicable in the instant case. In the opinion in that case (p. 238) ,we find the following: “It could not exercise the right conferred upon it by the order of the court, without submitting tq the terms imposed upon it by that order. Submission "to, these terms was a condition precedent to the.exercise of the right. It is too late, after exercising the right conferred upon it by the order, to question the terms under which it was exercised, or the power of the court to enforce them.” The order of the court in the instant case provides that “in the event said judgment is not reversed, then said, obligors will pay to said Caldwell Lumber Co. the sum of $500.00 per month from the date of said judgment to the date the remittitur from the Supreme Court may be made the judgment of the trial court.” Construing the order and the bond together, as they must be construed, it is clear that the bond was breached when the Supreme Court failed to reverse the judgment of the lower'court, and that' the obligee in the bond would have the right to bring suit when the remittitur from the Supreme Court was made the judgment of the trial court. The' judgment in the instant case, sustaining certain grounds of the demurrer and dismissing the petition, deprived the plaintiffs of this right, and must be

Reversed.

Broyles, P. J., and Harwell, J., concur.