National Sur. Corp. v. Boney

• Decision Date: 25 February 1959
• Docket Number: 2,No. 37285,Nos. 1,37285,s. 1
• Citation: 108 S.E.2d 342,99 Ga.App. 280
• Parties: NATIONAL SURETY CORPORATION v. BONEY
• Court: Georgia Court of Appeals

Page 342

108 S.E.2d 342

99 Ga.App. 280

NATIONAL SURETY CORPORATION v. BONEY.

No. 37285.

Court of Appeals of Georgia, Division Nos. 1, 2.

Feb. 25, 1959.

Rehearing Denied March 19, 1959.

Syllabus by the Court

1. The act of March 4, 1958, (Ga.L.1958 p. 114, 116), amending Code § 56-601, changing the venue in certain actions against insurance companies and vesting jurisdiction of actions on bonds of sheriffs or other law enforcement officers exclusively in the county where the officer resides does not apply to suits then pending.

2. The Civil Court of Fulton County has jurisdiction to entertain an action brought on the bonds of officers of Fulton County, though the breach of the bond may raise out of wrongful, personal injury inflicted upon the plaintiff.

3. The sheriff's bond being a joint and several obligation of him surety, he is not a necessary party to a suit on the same.

4. Where as here, the points relied on for a reversal of the trial court were either not raised in the trial court or show no error, the judgment of the trial court must be affirmed.

Mrs. J. D. Boney brought an action against National Surety Corporation in the Civil Court of Fulton County. The petition alleged that the defendant, National Surety Corporation, was the surety on the bond of Carlus Gay, Sheriff of Laurens County, Georgia. The bond attached as an exhibit to the petition reads: 'Know all men by these presents: That we, Carlus Delmas Gay, as principal, and National Surety Corporation, New York, N. Y. as sureties, are held and firmly bound unto his Excellency Marvin Griffin, Governor of the State of Georgia, and his successors in office, in the just sum of three ($3,000.00) thousand dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, each and every one of them, jointly and severally, firmly by these presents. Sealed with our seals, and dated this the 19th day of December Nineteen Hundred Fifty-six. The condition of the above obligation is such, that, whereas, the above bound Carlus Delmas Gay has been elected sheriff in and for said county; Now, should he, the said Carlus Delmas Gay faithfully perform all and singular his duties as sheriff of said county, during the term for which he has been elected, by himself, his deputies or jailors, and upon the terms required by law, then the above bond is to be void; else of full force and effect.'

The petition related that Sheriff Carlus Gay violated the conditions of the bond in that, which acting under the color and by virtue of his office, he wrongfully and violently attacked the plaintiff, inflicting certain serious physical injuries, and that, though she had committed no offense, wrongfully incarcerated her in the common jail of Laurens County. The suit was instituted December 18, 1957. On January 6, 1958, the defendant demurred generally to the petition. The grounds were: 'Demurring generally, there is no cause of action set out in the petition. Demurring generally, the petition is fatally defective because it shows on its face the absence of certain indispensable prerequisites to the maintenance of such suit on the instrument sued on.'

On the same day the defendant filed a plea which set up: 'The instrument and obligation sued on is the official bond of Carlus Delmas Gay, as Sheriff of Laurens County, Georgia, which was jointly entered into by him as principal and this defendant as surety, and upon which they are jointly liable; and the liability of this defendant as surety thereon is secondary to that of its aforesaid principal; and therefore the said Carlus D. Gay is a necessary and indispensable party to any action or suit on the said official bond, and he has not been joined as a defendant in the case. The said Carlus D. Gay, as principal on the official bond sued on in this case, will be directly and materially affected by the outcome of said suit, and as principal upon said bond he would be liable for any judgment recovered thereon, as a matter of law, and his substantive rights and right of defense would be foreclosed and cut off by such a judgment; and therefore, the said Carlus D. Gay is a necessary and indispensable party to this action or suit, and he has not been made a party defendant thereto.'

On March 4th, 1958 the General Assembly enacted into law a statute reading in part: 'Provided, further, that any action or suit on the bond of a sheriff, or other arresting or law enforcement officer, upon which any guaranty or surety company or fidelity insurance company is bound and obligated as surety, shall be instituted in the county of the residence of such officer, and not in any other county; and the county of the residence of such officer is hereby fixed as the venue of any action or suit on such bond.' Ga.L.1958, pp. 114, 116; Code (Ann.), § 56-601.

On May 21, 1958, the Judge of the Civil Court of Fulton County overruled the general demurrer and denied the plea in abatement. The defendant excepted.

Carl K. Nelson, Nelson & Nelson, Dublin, Newell Edenfield, Buchanan, Edenfield & Sizemore, Atlanta, for plaintiff in error.

Daniel Duke, Atlanta, for defendant in error.

NICHOLS, Judge.

1. It is apparent that the Act of March 4, 1958, amending Code, § 56-601 conferred exclusive jurisdiction to try actions on the bonds of sheriffs and law enforcement officers in the county of the officer's residence.

The view that the statute when passed was applicable to pending suits is contrary to the holdings of our Supreme Court. Mayor, etc., of Cartersville v. Lyon, 69 Ga. 577; Conyers v. Commissioners of Roads & Revenues of Bartow County, 116 Ga. 101, 42 S.E. 419.

The former case holds that an act or constitutional provision which divests a court of jurisdiction that it formerly had to entertain cases of a particular class, does not affect a pending suit. The latter is of similar import though not exactly in line.

In the case of Walker Electrical Co. v. Walton, 203 Ga. 246, 249, 46 S.E.2d 184, 187, is a pronouncement of the rule relative to a question identical in principle with the one now discussed. 'The act increasing the jurisdiction of the civil court of Fulton County does not contain any restriction or limitation as to cases pending on the effective date of the act, and in the absence of such restriction or limitation, defenses filed or amended after the effective date would fall within the jurisdiction of the court as amended by the act of 1946.'

Thus it appears that an act extending the jurisdiction of a court is applicable to pending suits, but an act diminishing jurisdiction or depriving a court of jurisdiction to entertain suits of a class does not apply to pending suits.

Conceding that the General Assembly is empowered, in certain instances, to enact remedial statutes that take effect upon their passage and are applicable to then pending suits, such as where the statute merely changes the mode of trial of cases then pending, or where a court is abolished and all pending cases are necessarily transferred to another court within the same locale, the amendatory Act of March 4, 1958, does not in any manner change the remedy in such cases, but merely established venue for the bringing of such actions, and as we construe the act, it is applicable only to cases that were filed subsequently to the passage of said act and most certainly inapplicable to the case at bar since it was filed several months prior to the passage of said act.

'Laws prescribe for the future. Unless a statute, either expressly or by necessary implication, shows that the General Assembly intended that it operate retroactively, it will be given only prospective application.' Anthony v. Penn, 212 Ga. 292, 293, 92 S.E.2d 14, 15, and cases there cited.

The act now under consideration reads in part as follows: 'Provided further that any action or suit on the bond of a sheriff, or other arresting or law enforcement officer, upon which any guaranty or surety company or fidelity insurance company is bound and obligated as surety, shall be instituted in the county of the residence of such officer, and not in any other county; and the county of the residence of such officer is hereby fixed as the venue of any action or suit on such bond.' Ga.L.1958, pp. 114, 116.

Although the language used in the caption of the act sub judice does have a retroactive connotation that would apply to pending suits, the language used in the body of the act has the opposite or prospective meaning, and affirmatively shows that it applies to future actions only.

This court is of the opinion that once a right of action is reduced to a petition, filed as a law suit in a court of competent jurisdiction and parties litigant served, it then becomes a vested right in both the plaintiff and defendant to have said cause tried in that particular court, and such right is not subject to be divested by legislation enacted subsequently to the filing of said action in such court of competent jurisdiction to the detriment of either party. More particularly is this true where such legislation, even though it might be considered remedial in nature, does not either expressly or by necessary implication evince such legislative intent. Anthony v. Penn, 212 Ga. 292, 92 S.E.2d 14, supra.

2. The Civil Court of Fulton County has jurisdiction to entertain an action brought on the bonds of officers of Fulton County, though the breach of the bond may have arisen out of wrongful, personal injury inflicted upon the plaintiff. Hawkins v. Nat. Surety Corp., 63 Ga.App. 367, 11 S.E.2d 250; Powell v. Fidelity & Deposit Co. of Md., 48 Ga.App. 529, 173 S.E. 196; Copeland v. Dunehoo, 36 Ga.App. 817, 820, 138 S.E. 267, and Walker v. Whittle, 83 Ga.App. 445(2), 64 S.E.2d 87.

The suits arising out of personal injury referred to in the Act creating the court, Laws 1946, p. 287, were those in which the suit is brought for damages on account of wrongfully inflicted injuries, and...