Dukes v. Dukes

• Court: Georgia Court of Appeals
• Writing for the Court: BELL
• Citation: Dukes v. Dukes, 168 S.E.2d 902, 119 Ga.App. 842 (Ga. App. 1969)
• Decision Date: 20 June 1969
• Docket Number: No. 2,No. 44348,44348,2
• Parties: Lerella DUKES v. James DUKES et al

Page 902

168 S.E.2d 902

119 Ga.App. 842

Lerella DUKES v. James DUKES et al.

No. 44348.

Court of Appeals of Georgia, Division No. 2.

June 20, 1969.

Syllabus by the Court.

It is essential to the validity of a peace bond that the proceedings be returned to the next term of the superior court after the bond is given. Failure to make the return on time vitiates the obligation.

The Judge of the City Court of Albany issued a peace warrant upon the affidavit of Lerella Dukes, plaintiff in this case, against defendant James Dukes. The accused was arrested and on May 17 he gave bond to keep the peace. On January 8, 1968, plaintiff brought this suit to recover for a violation of the bond. The evidence on the trial showed that after the bond was accepted by the Sheriff of Dougherty County the proceedings were never returned to the superior court. The trial resulted in a verdict for defendant.

Frank F. Faulk, Jr., Albany, for appellant.

Smith, Gardner, Wiggins, Geer & Brimberry, Peter Zack Geer, Albany, for appellee.

BELL, Presiding Judge.

An Act of 1827 'regulating the proceedings on bonds taken for the security of the peace' (Cobb's Digest, pp. 859, 860) made it the duty of any judicial officer who took a peace bond to return the bond together with the affidavit and other evidence to the next term of the superior, inferior or city court, whichever sat first. And it was the duty of the officer prosecuting for the State in that court, on the first day of the term or as soon afterwards as possible, to move the judge to take the case into consideration. Another Act, passed in 1850 (Cobb's Digest, p. 865), made it the duty of the committing officer to hear evidence before exacting a peace bond and also permitted the accused to introduce evidence to show there was no just ground for the warrant.

In the absence of waiver (Hall v. Browning, 71 Ga.App. 835, 836, 32 S.E.2d 424), the law still requires that the accused be given a preliminary hearing. Code Ann. § 76-201. On these procedural details see Keith v. State, 27 Ga., 483, 484. From the Code of 1863 to the present Code, Title 76, statutory provisions for good behavior bonds and for peace bonds have not been changed. The details of the Act of 1827 were not incorporated in any of the Codes, but that Act demonstrates that it was never intended that proceedings of this kind terminate before the committing officer. Under the several Codes there is a 'continuing intimation' that peace bonds are to be returned to and finally acted upon by superior courts and that cases of this kind are to be treated as criminal cases; since the adoption of the Code of 1863, peace bonds have been returnable to superior courts only. Levar v. State, 103 Ga. 42, 45, 29 S.E. 467. See also Stephens v. Wallis, 75 Ga. 726, 727.

A bond for good behavior may be extended from term to term at the discretion of the superior court judge; 'if not extended, it shall expire with the session of court.' Code § 76-103. With reference to peace bonds, Code § 76-204 provides: 'The superior court may, at any time, discharge the bond, unless there shall be a motion to extend it, accompanied by evidence to satisfy the court of the necessity of such extension.' The Code contains no express provision for the automatic expiration of peace bonds as it does for good behavior...