Alexander v. Edwin Bates & Co

• Decision Date: 30 November 1861
• Court: Georgia Supreme Court
• Parties: Thomas W. Alexander, plaintiff in error. vs. Edwin Bates & Co., defendants in error.

33 Ga. 125

Thomas W. Alexander, plaintiff in error. vs. Edwin Bates & Co., defendants in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1861.

Scire facias, on bail bond and cause shown. In Gwinnett Superior Court. At March Term, 1861. Judgment by Judge Hutchins.

Edwin Bates & Co. sued Job W. Harris and William H. Harvey, on a promissory note, and filed their affidavit, requiring bail. The defendants entered into a bail bond, with Thomas W. Alexander as security, the condition of which was in these words: " If the said Job W. Harris and William H. Harvey, in case they are cast in said suit, shall well and truly pay and satisfy the condemnation of the Court, and abide by and perform the judgment of the Court, in terms of the law, in such case made and provided, and upon failure thereof, the said Thomas W. Alexander will do it for them; then this bond to be void, else to remain in full force."

Plaintiffs obtained judgment against the defendants, and sued out a ca. sa., upon which the sheriff returned that Harris was not to be found, and that he had arrested Harvey, who, upon giving bond for jail bounds, had been discharged. A scire facias against the bail was sued out, and subsequently dismissed for irregularity in the issuing of the ca. sa. Thereupon a second ca. sa. was issued, upon which the sheriff returned that Harris was not to be found, and that Harvey had been arrested upon a previous ca. sa., issued under the same judgment, had filed his schedule, and been discharged under the Insolvent Debtor's Act.

The plaintiffs then sued out a scire facias on the bail bond, against Harris as principal, and Alexander as security, which was served upon the latter. At the return term of the sci. fa., Alexander, the security, appeared, and, for cause against judgment on said bond, showed, among other things, "that the said bail bond is void, because there is a condition omitted, the omission of which is prejudicial to him, " viz: "the right of the principals to surrender their bodies in discharge of their bail, or the right of the bail to surrender his principals in his own discharge." Other causes were shown, which are omitted, because unnecessary, in the view taken by the Court. The parties having agreed that the presiding Judge should adjudicate all matters of fact, as well as of law, involved in the pleadings, his Honor, the Judge, overruled the answer of the defendant, after a hearing, and ordered that judgment be entered against the security in the bail bond, for principal, interest and cost, and to this ruling the defendant, Alexander, excepted.

When the cause was called for argument in this Court, counsel for defendant in error moved to dismiss it, on the ground that it appeared, from the record, that more than ten days elapsed between the filing of the bill of exceptions, in the Superior Court, and the certifying of the transcript. The Court reserved this point, and ordered that the argument proceed on the merits of the case.

Wm. H. Hall, representing James Jackson, for plaintiff in error.

J. N. Glenn, for defendant in error.

By the Court—Jenkins, J., delivering the opinion.

1. The counsel for the defendant in error rests his motion to dismiss the case upon the fifth and sixth sections of the Act of 1856, entitled, "An Act to simplify the method of carrying cases to the Supreme Court, and for other purposes, " pamphlet 199. The fifth section, among other things, enacts that "it shall be the duty of said Clerk, (of the Superior Court,) within ten days after said bill of exceptions shall have been filed in his office, to make out a copy of said bill of exceptions, and also a complete transcript and copy of the record in said case, and to certify the same to be a...