Am. Sur. Co. Of N.Y. v. Macon Sa, (No. 5061.)

• Court: Georgia Supreme Court
• Writing for the Court: HILL
• Citation: Am. Sur. Co. Of N.Y. v. Macon Sa, 132 S.E. 636, 162 Ga. 143 (Ga. 1926)
• Decision Date: 16 April 1926
• Docket Number: (No. 5061.)
• Parties: AMERICAN SURETY CO. OF NEW YORK. v. MACON SAV. BANK.

162 Ga. 143

132 S.E. 636

AMERICAN SURETY CO. OF NEW YORK.

v.MACON SAV. BANK.

(No. 5061.)

Supreme Court of Georgia.

April 16, 1926.

(Syllabus by the Court.)

Certified Questions from Court of Appeals.

Suit by the Macon Savings Bank against the American Surety Company of New York. Judgment for plaintiff, and defendant brought error to the Court of Appeals, which certified questions to the Supreme Court. Questions answered.

Robt. W. Barnes, of Miami, Fla., and Ryals & Anderson, of Macon, for plaintiff in error.

Jones, Park & Johnston, of Macon, for defendant in error.

HILL, J. The Civil Code 1910, § 3054, provides:

"Suit may be instituted against the guardian and his sureties on his bond in the same action at the instance of his ward, or a new guardian, or any other person interested, without first suing the guardian; and if the guardian is beyond the jurisdiction of the court, or places himself in the position of a debtor liable to attachment, or is dead and his estate unrepresented, suit may be commenced against the sureties alone: Provided, that the fi. fa. issued upon a judgment obtained against the guardian and his sureties shall not be levied upon the property of the sureties until a return of nulla bona as to the guardian, unless the property of the sureties is being removed from the county. If the failure to sue the guardian arose from his voluntary act, the judgment against the sureties shall be conclusive in any suit against him."

Section 3974 provides:

"The administrator and his sureties shall be held and deemed joint and several obligors, and may be sued as such in the same action; and if the administrator is beyond the jurisdiction of this state, or is dead, and his estate unrepresented, or is in such position that an attachment may be issued against him, the sureties, or any one or more of them, may be sued. No prior judgment, establishing the liability of the administrator or a devastavit by him, shall be necessary before suit against the sureties on the bond."

These sections were derived from the act of 1820. Cobb's Digest, 320; Acts 1851-52, p. 235; Acts 1855-56, p. 145; Cobb's Digest, 484. These acts of the Legislature and sections of the Code have been the basis of much learned discussion by former judges of this court. As far back as the case of Justices v. Sloan, 7 Ga. 38, Judge Nesbit delivered a very able and well-reasoned opinion; and see also, to the same effect, Ray v. Justices, 6 Ga. 308; Cameron v. Justices, 1 Ga. 36 (2), 44 Am. Dec. 636.

In Bailey v. McAlpin, 122 Ga. 616, 50 S. E. 388, Judge Cobb, speaking for the court, considered and reviewed all of the cases on this subject previously decided by this court, and also the acts of the Legislature above mentioned, and reached the conclusion that the effect of the section of the Code of 1863, § 2470, now section 3974, which declares that "no prior judgment, establishing the liability of the administrator or a devastavit by him, shall be necessary before suit against the sureties on the bond, " was to permit a suit to be brought on the bond in the first instance against the administrator and his sureties. The decision of Judge Nesbit (7 Ga. 31) held, in effect, that, before a surety on an administrator's bond could be sued, there must be a preliminary suit against the administrator fixing the liability of such administrator. That decision, and others like it, were rendered prior to the Code of 1863. In that Code the acts of 1820 and 1851-52, with reference to suits against sureties on administrator's and guardian's bonds were separated and put into two sections...