Easy Out Bonding v. State
| Decision Date | 03 February 1997 |
| Docket Number | No. A97A0303,A97A0303 |
| Citation | 481 S.E.2d 834,224 Ga.App. 706 |
| Parties | , 97 FCDR 473 EASY OUT BONDING et al., v. STATE of Georgia. |
| Court | Georgia Court of Appeals |
Brett D. Turner, Gainesville, for appellants.
Albert F. Taylor, Jr., District Attorney, Mary E. Moore, Assistant District Attorney, for appellee.
Appellant, Easy Out Bonding, signed $21,000 in surety bonds for Edwin Charles O'Malley, the defendant/principal, who had been arrested on various felony charges. After the defendant failed to appear for trial on February 5, 1996, the trial court issued a bench warrant and ordered a bond forfeiture on February 14, 1996. On the same day the forfeiture was signed, the trial court served appellant with notice of the order by certified mail. In June 1996, appellant filed a motion to vacate the bond forfeiture based on the asserted failure of the trial court to give appellant notice of the trial date, as required in OCGA § 17-6-70(b). The trial court denied the motion on July 3, 1996; issued a judgment absolute on the forfeiture on August 2, 1996; and issued a fieri facias on August 6, 1996 against appellant, who timely appealed. Because this Court finds that the trial court acted within the statutory requirements for notice of appellant prior to forfeiture proceedings, we affirm the decision of the trial court.
1. In the first enumeration of error, appellant asserts that the trial court's denial of appellant's motion to vacate bond forfeiture was error because the trial court did not order the bond forfeiture or provide notice of the forfeiture within the statutory requirements of OCGA § 17-6-71(a). According to appellant, the statute requires that the court forfeit the bond and order an execution hearing "at the end of the court day, upon the failure of the principal to appear." OCGA § 17-6-71(a). However, appellant apparently misinterprets the statute as requiring the trial court to conduct its business by the end of the day or to forego forfeiture proceedings altogether.
This interpretation is inconsistent with the rest of the subsection, which allows the court ten days following the failure to appear to notify the surety of the forfeiture and the pending execution hearing. OCGA § 17-6-71(a). Little would be gained by requiring the court to quickly issue an order, which may then be ignored until service to the parties ten days later.
This harm is substantially greater than that asserted by appellant in the case sub judice, who claims that the nine-day period between the defendant's failure to appear on February 5, 1996 and the court's forfeiture order on February 14, 1996 prevented appellant from locating and presenting the defendant. However, under the plain language of the statute, appellant was not entitled to notice of the forfeiture order until ten days after the defendant's failure to appear, regardless of when the order was actually issued. OCGA § 17-6-71(a). Since appellant was notified of the forfeiture order within the ten-day statutory notice period, 1 appellant suffered no harm by the trial court's failure to sign the order on February 5, 1996.
Absent an express statutory provision to the contrary, we find that the legislature did not intend to require a trial court to sign a forfeiture order the same day as the defendant's failure to appear as a condition precedent to issuing a judgment absolute. See Griffin v. State, 194 Ga. App. 624, 391 S.E. 2d 675 (1990); AAA Bonding Co. v. State, 192 Ga.App. 684, 685, 386 S.E.2d 50 (1989). The "end of the court day" language at issue is "directory and not a limitation of [the trial court's] authority," particularly where appellant was not harmed. Jam Bonding Co. v. State of Ga., 184 Ga.App. 246, 247, 361 S.E.2d 238 (1987). Therefore, this Court declines to adopt appellant's overly-restrictive interpretation of OCGA § 17-6-71(a) and affirms the trial court's denial of the motion to vacate the bond forfeiture.
2. In the second enumeration of error, appellant asserts that the trial court failed to give notice of the defendant's request for a continuance and subsequent trial date, pursuant to OCGA § 17-6-70(b), which conditions bond forfeiture upon written notice to the surety at least 72 hours before a required court appearance by the principal. Appellant claims that she did not receive notice prior to the defendant's February trial date, so that the statute precludes the trial court from ordering the bond forfeiture. Appellant also claims that she was...
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...10 days too late and the April 12, 2016 order was one day too late. Don Johnson Bonding concedes that in Easy Out Bonding v. State, 224 Ga. App. 706, 706-707 (1) (481 SE2d 834) (1997), we held that the "end of the court day" language is directory. But, it argues, since that case was decided......
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Don Johnson Bonding Co. v. State, A17A0469 A17A0692.
...10 days too late and the April 12, 2016 order was one day too late.Don Johnson Bonding concedes that in Easy Out Bonding v. State , 224 Ga. App. 706, 706-707 (1), 481 S.E.2d 834 (1997), we held that the "end of the court day" language is directory. But, it argues, since that case was decide......