Atlas Supply Co. v. U.S. Fidelity & Guaranty Co., 44054

• Decision Date: 14 January 1969
• Docket Number: No. 44054,No. 2,44054,2
• Citation: 119 Ga.App. 152,166 S.E.2d 624
• Parties: ATLAS SUPPLY COMPANY v. UNITED STATES FIDELITY & GUARANTY COMPANY et al
• Court: Georgia Court of Appeals

Page 624

166 S.E.2d 624

119 Ga.App. 152

ATLAS SUPPLY COMPANY v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.

No. 44054.

Court of Appeals of Georgia, Division No. 2.

Jan. 14, 1969.

Rehearing Denied Feb. 5, 1969.

Certiorari Denied March 20, 1969.

Syllabus by the Court

The right of action against a clerk for the acceptance of an insolvent or insufficient surety upon a bond does not accrue until a judgment is rendered on the bond.

Atlas Supply Company, a materialman, filed a complaint in the Civil Court of Fulton County against Tyre Lee Terry, Clerk of Cobb Superior Court, and the United States Fidelity & Guaranty Company, the surety on the clerk's bond, seeking to recover $29,364 for the clerk's alleged negligent action in approving a bond given under Code Ann. § 67-2004 (Ga.L.1953, p. 544). It alleged that: the plaintiff furnished and sold certain materials to Apartment Development, Inc., which were used by it in improving certain described real estate; the value of the materials was $29,364; the plaintiff filed a lien against the property of Apartment Development, Inc.; Apartment Development, Inc., filed a bond to discharge plaintiff's lien under Code Ann. § 67-2004; the bond was signed by Floyd Granger as security and was approved by a deputy clerk who negligently and improperly performed his duty since Floyd Granger was a nonresident of the State of Georgia; the deputy clerk was duly appointed by the clerk Tyre Lee Terry and his negligence is imputable to the clerk.

The defendants filed a motion to dismiss. Thereafter the plaintiff amended its complaint by alleging that Floyd Granger, the security, owned no property in the State of Georgia and was insolvent both at that time and at the time he signed the bond. By further amendment the plaintiff specified with particularity how the action of the clerk had damaged it and alleged facts showing that the sale of the property involved after the clerk had approved the bond resulted in the real estate being discharged from the plaintiff's lien. The defendants filed a further motion to dismiss. This motion came on for hearing and the trial judge entered an order sustaining such motion. Appeal was taken from this judgment.

Wendell C. Lindsey, Atlanta, for appellant.

Edwards, Bentley, Awtrey & Parker, Fred D. Bentley, Sr., Marietta, for appellees.

QUILLIAN, Judge.

The sole question presented by this appeal is whether the complaint was filed prematurely where there was no foreclosure of the...