Osborne Bonding Co. v. Harris, 73637

• Decision Date: 07 July 1987
• Docket Number: No. 73637,73637
• Citation: 183 Ga.App. 764,360 S.E.2d 32
• Parties: OSBORNE BONDING COMPANY v. HARRIS.
• Court: Georgia Court of Appeals

Page 32

360 S.E.2d 32

183 Ga.App. 764

OSBORNE BONDING COMPANY v. HARRIS.

No. 73637.

Court of Appeals of Georgia.

July 7, 1987.

Rehearing Denied July 22, 1987.

Certiorari Denied Sept. 8, 1987.

T. Michael Martin, Jonesboro, for appellant.

Stephen F. Lanier, Dist. Atty., H. Allen Moye, Sp. Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., for appellee.

BEASLEY, Judge.

This is an appeal by the bondsman from an appearance bond forfeiture. The following is undisputed: Whorton was indicted for conspiracy to traffic in cocaine. He was arrested and held in the Floyd County Jail without bond. Upon Whorton's petition the court set bond at $500,000. Prior to securing a bond, Whorton and his counsel of record were sent notice that he would be arraigned approximately 2 1/2 weeks later. The day after the notice was sent, Osborne Bonding Company prepared and executed a bond for principal Whorton in the amount of $500,050. Three days later, the Osborne bond was presented to the Sheriff of Floyd County. It had previously been approved by the Sheriff of Clayton County. At the time of presentation of the Osborne bond, the Sheriff of Floyd County was given a second bond made by five independent sureties for principal Whorton in the amount of $500,000, and the sheriff approved the bonds. Whorton was released.

He appeared for arraignment and pled not guilty. The court published its trial calendar and notice of the trial date was mailed to Whorton, his counsel, and the five sureties on the second bond. Notice was not mailed to Osborne.

Whorton appeared with counsel for the start of the trial, but four days later failed to appear to continue the trial. He was called to come into court as principal on the bonds and the sureties were called upon to produce the principal in accordance with the terms of the posted bonds. Whorton did not appear and the trial proceeded resulting in his conviction. The court delayed sentencing. After the state instituted proceedings to forfeit the bonds, the court ordered the principal and sureties to show cause why an order and judgment should not be made final against the bondsmen.

Osborne filed a response to the state's petition for forfeiture of recognizance alleging that the bond on which it was surety lacked specificity and was therefore void, that it was not binding as to the principal and therefore not binding on it as surety, and that the forfeiture proceedings employed by the state were improper and failed to comply with statutory requirements.

After a hearing and the opportunity to submit legal memoranda the court entered a detailed order rendering final judgment by default against principal Whorton for $500,050, plus costs and judgment against Osborne and the sureties on the second bond for the same sum. The court specifically found that the sureties had shown no sufficient reason why the appearance bonds should not be forfeited.

The bases of Osborne's appeal are three.

1. Osborne argues that the bond contract did not specify where and when it was to produce the principal and thus is void and unenforceable due to lack of specificity.

The face of the bond stated that Whorton "shall personally be and appear at the next Superior court of Floyd County, to be held on the To Be Notified next, from day to day, and from Term to Term, ..." (Typed-in language italicized).

The place of appearance as the "Superior Court of Floyd County" is sufficiently specific. See Gunsallus v. Busbee, 149 Ga.App. 109, 253 S.E.2d 470 (1979). Furthermore, the now objected-to language as to the time of appearance, i.e., "to be notified" was prepared and approved by Osborne itself; therefore, it cannot complain of it. Moreover, "[a] bond contract may be valid even though it is signed in blank, where the terms are agreed upon but left to be filled in at a future time. [Cits.]" Jam Bonding Co. v. State of Ga., 179 Ga.App. 82, 83, 345 S.E.2d 87 (1986).

The ground of lack of specificity to void the bond falls.

2. Osborne asserts that the state's failure to notify it as to the time and place for Whorton's arraignment and trial nullifies and voids the bond because of the

notice of arraignment requirement of OCGA § 17-7-91 (a), the notice of trial as provided in Uniform Superior Court Rule...