Northeast Atlanta Sur. Co. v. State

• Decision Date: 26 October 1990
• Docket Number: No. A90A2096,A90A2096
• Citation: 398 S.E.2d 435,197 Ga.App. 399
• Parties: NORTHEAST ATLANTA SURETY COMPANY et al. v. STATE of Georgia
• Court: Georgia Court of Appeals

Page 435

398 S.E.2d 435

197 Ga.App. 399

NORTHEAST ATLANTA SURETY COMPANY et al. v. STATE of Georgia

No. A90A2096.

Court of Appeals of Georgia.

Oct. 26, 1990.

Alan Z. Eisenstein, Atlanta, for appellants.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

This is an appeal from the forfeiture of a bond. On August 19, 1988, appellant, Northeast Atlanta Surety Company (Northeast), entered upon the bond of Alphonso Curry (defendant) in the Fulton County Superior Court in the amount of $2,550 for violation of the Georgia Controlled Substances Act and unlawful possession of a firearm. When the defendant failed to appear, the court ordered the bond forfeited on December 1, 1988, and ordered the defendant and Northeast to show cause why final judgment should not be entered on the forfeited bond at an execution hearing on February 16, 1989. After the defendant failed to appear and was not produced by Northeast at the execution hearing, the court entered a final judgment of forfeiture on the bond on February 16, 1989, in the amount of $2,550.

Northeast filed a motion to vacate the final judgment on April 13, 1990. The court denied the motion to vacate by order dated May 14, 1990. Thereafter, we granted Northeast's application for discretionary appellate review. Northeast asserts the trial court erred by entering final judgment on the bond forfeiture, and later refusing to vacate that judgment, because at the time the judgment was entered, the defendant was incarcerated in the DeKalb County Jail on an unrelated charge. Held:

In Sunrise Bonding Co. v. Busbee, 165 Ga.App. 83, 84, 299 S.E.2d 153 (1983), this court recognized the rule originating in Buffington v. Smith, 58 Ga. 341 (1877): "When the principal [defendant] in a criminal recognizance, conditioned for his appearance to answer a specific criminal charge therein designated, is thereafter arrested before judgment is executed on the bond for an entirely different crime and remains in the custody of the state, the sureties on the bond are released. This release arises from the sureties' inability to produce their principal to answer the charge caused by the state assuming custody of their principal to which they were theretofore entitled." Accord Cooper v. Brown, 10 Ga.App. 730, 73 S.E. 1101 (1912). It is undisputed that the defendant was incarcerated in the DeKalb County Jail on an unrelated charge during the period December 12, 1988, through March 20, 1989, and that the court was unaware of this fact when it entered final judgment on February 16, 1989. The defendant was subsequently surrendered to the Fulton court, where on March 30, 1989, he entered a guilty plea and was sentenced on the controlled substance charge. The firearms charge was dead docketed. Nevertheless, on similar facts in Sunrise we affirmed the trial court's refusal to set aside the final judgment because there was no evidence that the motion to set aside the judgment was predicated upon a non-amendable defect appearing on the face of the record or pleadings, which was the only basis, aside from jurisdictional grounds, upon which the surety could seek to have the judgment set aside under the then existing version of the statute. Ga.L.1974, p. 1138, § 1 (current version at OCGA § 9-11-60(d)).

As noted in Sunrise, the fundamental rules for seeking relief from judgments apply. Northeast seeks relief from the judgment on the basis that the defendant was held by the State in the DeKalb County Jail when judgment was entered, which prevented it from producing the defendant. Nothing in the record or the pleadings indicates that Northeast informed the court that the defendant was incarcerated elsewhere or that the court otherwise knew this fact prior to the entry of final judgment. Since at the time judgment was entered no credible evidence had been presented which would nullify the effect of the bond, the final judgment was valid on its face when rendered. Ace Bonding Co. v. State, 180 Ga.App. 261, 263, 349 S.E.2d 15 (1986); Sunrise, supra 165 Ga.App. at 84, 299 S.E.2d 153. However, Northeast seeks relief from the judgment, not on the basis of a non-amendable defect on the record or pleadings, but rather on what amounts to a claim under OCGA § 9-11-60(d)(2) based on "Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; ..." Effective July 1, 1986, the legislature added these as additional grounds for the motion. Ga.L.1986, p. 294 § 1.

None of these grounds provides Northeast with a basis for relief from the judgment. An accident is an event, not proximately caused by negligence, arising from an unforeseen or unexplained cause. Moore v. Barfield, 189 Ga.App. 348, 349, 375 S.E.2d 623 (1988). A claim of mistake, which is more closely aligned with the present facts, refers to the misapprehension of a past or present fact. Whipple v. County of Houston, 214 Ga. 532, 535-36, 105 S.E.2d 898 (1958). Regardless of whether the basis for relief from the judgment is characterized as mistake, accident, or because the State's actions prevented Northeast from producing the defendant, these grounds are mixed with the negligence of Northeast. Relief under OCGA § 9-11-60(d)(2...