Classic City Bonding Co. v. State, A02A1350.
| Citation | 256 Ga. App. 577,568 S.E.2d 834 |
| Decision Date | 16 July 2002 |
| Docket Number | No. A02A1350.,A02A1350. |
| Parties | CLASSIC CITY BONDING COMPANY v. STATE of Georgia. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
McArthur & McArthur, John J. McArthur, Athens, for appellant.
Thurbert E. Baker, Atty. Gen., Kenneth W. Mauldin, Dist. Atty., Phillip C. Griffeth, Asst. Dist. Atty., for appellee.
Classic City Bonding Company (Classic City) appeals from the trial court's order granting the State's motion for forfeiture of an appearance bond after the principal failed to appear in court on his arraignment date. Classic City argues that because the State did not serve it with notice of the execution hearing within ten days, as required by OCGA § 17-6-71, the trial court erred in forfeiting the bond. Because the State substantially complied with the notice requirement, we affirm.
The principal in this case was charged with criminal damage to property and entered into an appearance bond for $2,500 with Classic City. The principal failed to appear for arraignment on March 29, 2001. The State filed a motion for bond forfeiture on April 3, 2001, and scire facias was entered on that date scheduling an execution hearing for August 15, 2001. On April 11, 2001, the State served Classic City with notice of the hearing.
At the execution hearing, Classic City argued that the court should not grant the State's motion to forfeit the bond because the State did not serve it with notice of the hearing within ten days of the principal's failure to appear, as required by OCGA § 17-6-71. This Code section provides, in pertinent part:
The judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear. Notice of the execution hearing shall be served within ten days of such failure to appear by certified mail or statutory overnight delivery to the surety at the address listed on the bond or by personal service to the surety within ten days of such failure to appear at its home office or to its designated registered agent. Service shall be considered complete upon the mailing of such certified notice.
OCGA § 17-6-71(a).
Here, Classic City was not served until 12 days after the principal's failure to appear. It claims that the word "shall," as used in the statute, makes it mandatory that the State serve notice of the hearing within ten days.
We disagree. In AAA Bonding Co. v. State of Ga., 192 Ga.App. 684, 386 S.E.2d 50 (1989), this Court held that substantial compliance with the statutory requirements was sufficient. Nevertheless, Classic City argues that AAA Bonding is not applicable because it was decided under a previous version of the statute which required the State to serve notice of the hearing within seventy-two hours of the principal's failure to appear, not within ten days. But, the analysis in AAA Bonding still applies. In that case, we noted that OCGA § 1-3-1(c) provides that "[a] substantial compliance with any statutory requirement, ...
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...See, e.g., Northeast Atlanta Surety Co. v. Perdue, 294 Ga.App. 32, 33–34(1), 668 S.E.2d 508 (2008); Classic City Bonding Co. v. State, 256 Ga.App. 577, 578, 568 S.E.2d 834 (2002); AAA Bonding Co. v. State of Ga., 192 Ga.App. 684, 685(2), 386 S.E.2d 50 (1989).2 second, a surety was entitled ......
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DeKalb County v. Buckler
...rather than a command." (Punctuation and footnote omitted.) Id. at 195, 509 S.E.2d 125. See also Classic City Bonding Co. v. State of Ga., 256 Ga.App. 577, 568 S.E.2d 834 (2002) (where statute requiring notification within ten days following an event contained no penalty for failure to comp......
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...294 Ga.App. 32, 668 S.E.2d 508 (2008) (sufficient notice given 22 days after failure to appear); Classic City Bonding Co. v. State of Ga., 256 Ga.App. 577, 578, 568 S.E.2d 834 (2002) (sufficient notice given 12 days after failure to appear); AAA Bonding Co. v. State of Ga., 192 Ga.App. 684,......