Atlas Supply Co. v. U.S. Fidelity & Guaranty Co., 47202
| Decision Date | 15 June 1972 |
| Docket Number | No. 1,No. 47202,47202,1 |
| Citation | 126 Ga.App. 483,191 S.E.2d 103 |
| Parties | ATLAS SUPPLY COMPANY v. UNITED STATES FIDELITY & GUARANTY COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Upon the question whether due diligence was exercised by the clerk, who was alleged to have committed a breach of his official bond by accepting an insolvent or insufficient surety on a materialman's lien bond, the judgment in favor of the defendants was authorized by the evidence; and the rulings on admission of evidence were not erroneous.
This is the second appearance of this case in this court. See Atlas Supply Co. v. United States Fidelity & Guaranty Co., 119 Ga.App. 152, 166 S.E.2d 624. Thereafter, the plaintiff-appellant, a materialman, obtained a judgment in the Civil Court of Fulton County against its vendee and against Floyd Grainger, the security on the bond which discharged the plaintiff's materialman's lien, and a nulla bona was returned by a deputy marshal of that court, whereupon the plaintiff brought this action in the State Court of Cobb County against the defendants-appellees, the Clerk of Cobb Superior Court and the surety on the clerk's official bond, for the alleged breach of the clerk's official bond by the deputy clerk's approval of allegedly insufficient security on the bond discharging the plaintiff's materialman's lien. The judge, sitting as the trier of facts, entered a judgment in favor of the defendants. The plaintiff appeals from the overruling of its motion for new trial.
Wendell C. Lindsey, Decatur, for appellant.
Fred D. Bentley, Sr., Marietta, for appellees.
1. The defendant clerk is not an insurer or guarantor of the solvency or sufficiency of sureties accepted by him on bonds, his duty and responsibility in this regard being limited to the exercise of due care and diligence in determining the sureties' solvency and sufficiency. Dunn v. United States Fidelity & Guaranty Co., 45 Ga.App. 249, 164 S.E. 480.
In the absence of any legal requirement that sureties be residents of this State, the question of the surety's residence is not relevant, the issue here being the sufficiency of the surety's leviable assets within this State. Nor does not showing that nulla bona was returned in Fulton County prove lack of leviable assets in Cobb County or elsewhere in the State at the time the nulla bona was returned, much less at the time of the acceptance of the surety on the bond.
There was evidence that the surety owned stock in several corporations in Cobb County and in Georgia at the time the bond was approved. Stock in a corporation is a chose in action and, in the absence of a statute, would not be subject to levy and sale under execution. Code § 39-113; Fourth Natl. Bank v. Swift & Co., 32 Ga.App. 589(1), 124 S.E. 181. Although the first sentence of Code § 39-123, which changed the common law so as to explicitly authorize levying on stock, was specifically repealed by the legislature in its enactment of the Uniform Commercial Code, Ga.L.1962, pp. 156, 427 (Code Ann. § 109A-10-103), the legislative intent to retain this right is probably implicit in the unrepealed portion of § 39-123, together with the provisions of Code § 39-124 and Code Ann. § 109A-8-317 (Ga.L.1962, pp. 156, 372).
Regardless of the status of the right to levy on stock under existing law, however, the evidence showed that the surety owned considerable realty in Cobb and Bartow Counties at the time the bond was approved. The amount of security was not reduced by the fact that some of this property was encumbered, since the plaintiff could redeem such property by paying to the grantee the full amount of the grantor's secured debt, then levy on it as the property of the...
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