National Surety Corporation v. Boney , 99 Ga. App. 280 ( 1959 )

Nichols, Judge.

It is apparent that the act of March 4, 1958, amending Code § 56-601 conferred exclusive jurisdiction to try actions on the bonds of sheriffs and law-enforcement officers in the county of the officer’s residence.

The view that the statute when passed was applicable’ to -pending suits is contrary to- the holdings of our Supreme Court. Mayor &c. of Cartersville v. Lyon, 69 Ga. 577; Conyers v. Commissioners &c. of Bartow County, 116 Ga. 101 (42 S. E. 419).

The former case holds that an act or constitutional provision which divests a court of jurisdiction that it formerly, had to entertain cases of a particular class, does not affect a pending suit'.- The latter is o-f similar import though not exactly in line.

In the case of Walker Electrical Co. v. Walton, 203 Ga. 246, 249 (46 S. E. 2d 184), is a pronouncement of the rule relative to a • question identical in principle with the one now discussed. “The- act increasing the jurisdiction of the Civil Court of Eulton County does not contain any restriction or limitation as to cases pending on the effective date of the act, and in the 'absence of such restriction or limitation, defenses filed or amended after the effective date would fall within t-he jurisdiction of the court as amended by the act of 1946.”

- Thus it appears that an act extending the jurisdiction of a court is- applicable to pending suits, but an act diminishing the jurisdiction or depriving a court of jurisdiction to entertain suits of a class does not apply to pending suits.

Conceding that the General Assembly is empowered, in certain instances, to enact remedial statutes that take effect upon their passage and are applicable to then pending suits, such as where the statute merely changes the mode of trial of cases then pending, or where a court is abolished and all pending cases are necessarily transferred to another court within the same locale, the amendatory act of March 4, 1958, does not in any manner change the remedy in such cases, but merely established venue for the bringing of such actions, and as- we construe the act, it is applicable only to cases that were filed subsequently to the passage of said act and most certainly inapplicable to the case at bar since it was filed several months prior to the passage of said act.

“Laws prescribe for the future. Unless a statute, either expressly or by necessary implication shows that the General Assembly intended that it operate retroactively, it will be given only. prospective application.” Anthony v. Penn, 212 Ga. 292, 293 (92 S. E. 2d 14), and cases-there cited.

The act now under consideration reads in part as follows: “Provided further that any action or suit on the bond of a sheriff, or other arresting or law enforcement officer, upon which any guaranty or surety company or fidelity insurance company is bound and obligated as surety, shall be instituted in the county of the residence of such officer, and not in any other county; and the county of the residence of such officer is hereby fixed as the venue of any action or suit on such bond.” Ga. L. 1958, pp. 114, 116.

Although the language used in the caption of the act sub judice does have a retroactive connotation that would apply to pending suits, the language used in the body of the act has the opposite or prospective meaning, and affirmatively shows that it applies to future actions only. .

This court is of the opinion that once a right of action is reduced to a petition, filed as a law suit in a court of competent jurisdiction and parties litigant served, it then becomes a vested right in both the plaintiff and defendant to have said cause tried in that particular court, and such right is not subject to be divested by legislation enacted subsequently to the filing of said action in such court of competent jurisdiction to the detriment of either party. More particularly is this true where such legislation, even though it might be considered remedial in nature, does not either expressly or by necessary implication evince such legislative intent. Anthony v. Penn, 212 Ga. 292, supra.

The Civil Court of Fulton County has jurisdiction to entertain an action brought on the bonds of officers of Fulton County, though the breach of the bond may have arisen out of wrongful, personal injury inflicted upon the plaintiff. Hawkins v. National Surety Corp., 63 Ga. App. 367 (11 S. E. 2d 250); Powell v. Fidelity & Deposit Co. of Md., 48 Ga. App. 529 (173 S. E. 196); Copeland v. Dunehoo, 36 Ga. App. 817, 820 (138 S. E. 267); and Walker v. Whittle, 83 Ga. App. 445 (2) (64 S. E. 2d 87).

The suits arising out of personal injury referred to in the act creating the court were those in which the suit is brought for damages on account of wrongfully inflicted injuries, and not actions on an officer’s bond, for malfeasance or misfeasance. Nothing in Cantrell v. Davis, 176 Ga. 745 (169 S. E. 38) presents a contrary view from that here expressed.

The sheriff is not, as contended by the defendant, a necessary party to a suit oru his official bond. Code § 3-204; Masters v. Pardue, 91 Ga. App. 684, 685 (86 S. E. 2d 704).

The authorities cited by counsel for the defendant have been carefully read but we are constrained to hold are not applicable to the facts of this case. Particularly noticed was the case of Carlan v. Fidelity & Cas. Co. of N. Y., 183 Ga. 715, 716 (189 S. E. 527) where it is held that a sheriff and his bondsmen are joint contractors. So they are, but the bond of a sheriff is a joint and several obligation of the sheriff principal and bondsman surety.

The various cases relating to equitable actions, and cases of joint liability of joint contractors are interesting, but have no bearing on the question of joinder here dealt with that concerns joint and several obligors.

Where as here the points relied upon for a reversal of the trial court were either not raised in the trial court or show no error, the judgment of the trial court must be affirmed.

Judgment affirmed.

Felton, C. J., Gardner, P. J., Townsend and Carlisle, JJ., concur. Quillian, J., dissents.