American Surety Co. v. Ed Smith & Sons, Inc.

Gardner, Presiding Judge.

Counsel for the plaintiff contends that Code (Ann.) § 23-1709 quoted herein above refers to final acceptance by the defendant as well as final payment. Counsel cites, in support of this contention, John Monaghan, Inc. v. State Highway Dept., 81 Ga. App. 289 (58 S. E. 2d 242). That case is not authority for affirmance here because the facts are not in accord with the facts of the instant case. Counsel for the plaintiff cites and relies on National Surety Corp. v. Wright, 70 Ga. App. 838, 841 (29 S. E. 2d 662). That case cannot aid counsel for the plaintiff, but on the contrary is .authority for reversal in the instant case. There the court went into the matter of the statute of limitations and said: “It is our opinion that the statute should be strictly construed, [referring to Code § 23-1709] and not be extended to apply a limitation to a canceled contract.” It will therefore be discerned that even in that case this court realized that the language of Code (Ann.) § 23-1709, which was therein quoted, conclusively showed that no action could be instituted on a bond after one year from the completion of the contract and the acceptance of the work involved in the contract. This court declines to extend a Code section so as to make the meaning other than the unequivocal language thereof, such as the language used in Code (Ann.) § 23-1709 quoted above. To our minds there is only one construction of Code (Ann.) § 23-1709, and that is to construe it as written. The language is plain and unequivocal.

The case is properly before this court. See Carter v. Clements, 98 Ga. App. 857 (107 S. E. 2d 257). A demurrer was the proper procedure to invoke the statute of limitations. See Hollingsworth v. Redwine, 73 Ga. App. 397 (36 S E. 2d 869).

It follows that the court erred in overruling the -demurrer invoking the statute of limitations, under the record of this case.

Judgment reversed.

Townsend and Carlisle, JJ., concur.