Strange v. Franklin

• Decision Date: 13 November 1906
• Citation: 126 Ga. 715,55 S.E. 943
• Parties: STRANGE . v. FRANKLIN et al.
• Court: Georgia Supreme Court

55 S.E. 943

126 Ga. 715

STRANGE .

v.FRANKLIN et al.

Supreme Court of Georgia.

Nov. 13, 1906.

Payment—Recovery—Mistake.

The plaintiff had been sued as a surety upon a forthcoming bond given to replevin property of the principal, which had been levied upon under an execution issued upon a void judgment, and, in the action upon the bond, judgment was rendered against himself and the principal. This latter judgment was also void, because rendered by a court which has no legal existence. But without attempting to resist the enforcement of the last-mentioned judgment, he voluntarily paid over the amount of the principal, interest, and costs to the plaintiff in the judgment, upon being informed by the clerk that, unless he did so, execution would be issued and levied upon his property. The demand upon which the first-mentioned judgment was based was a valid, subsisting debt due by the defendant in that judgment to the plaintiff therein. Held, that in an action for money had and received the evidence showing the foregoing facts, the judge, to whom the case was submitted without the intervention of a jury, did not err in rendering judgment for the defendant.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 272, 273, 283-287.]

(Syllabus by the Court.)

Error from Superior Court, Washington County; T. A. Parker, Judge.

Action by E. M. Strange, administrator, against II. M. Franklin and others. Judgment for defendants, and plaintiff brings error. Affirmed.

In February 1899, Franklin obtained a Judgment against Larry in the comity court of Washington county, and on the 5th day of September the fi. fa. was levied on property of said Larry. Larry filed a claim as the head of a family to the property so levied on by Franklin, and gave a forthcoming bond. Strange signed the bond as surety for Larry. The property not being produced on sale day the sheriff brought suit on the bond In the

county court of Washington county, and In February, 1900, a judgment was rendered thereon against Larry as principal, and Strange as surety; and Strange paid the amount of the judgment before fi. fa. was issued, upon being informed by one "who claimed to be the clerk of said court that he intended to issue fi. fa. and turn the same over to the sheriff for levy." Subsequently the Supreme Court held that the county court of Washington county was not established in the manner prescribed by law, and hence was unconstitutional. Murray v. State, 112 Ga. 7, 37 S. E. 111. Strange seeks to recover back the money paid as above stated.

John C. Harman and Evans & Evans, for plaintiff in error.

T. W. Hardwick and J. E. Hyman, for defendant in error.

BECK, J. (after stating the facts). There was no error in the judgment of the court below. The law and the facts in the case required the decision reached and rendered. The money paid by the plaintiff in error was not paid through any mistake of fact. The money was paid voluntarily on a bond which plaintiff in error, as surety, voluntarily signed. There is nothing in the agreed statement of facts to show that he was not fully apprised of all the facts and circumstances under which the principal had signed the bond. And nowhere in the pleadings is there anything to suggest that the facts constituting the alleged duress under which the principal was acting when he executed the bond were unknown to Strange at the time he affixed his signature as surety thereto. A surety upon a bond Is presumed to have had knowledge of the circumstances surrounding the principal at the time he became surety. Graham v. Marks, 98 Ga. 67, 25 S. E. 931. And knowing, as he is presumed to have known, the circumstances under which his principal executed the bond, inasmuch as the fi. fa., the levy of which caused his principal to replevin the property seized, was illegal and invalid, he could, after his principal's failure to meet the conditions of the replevin bond, by producing the property on the day of the sale, have prevented the rendition of a judgment against him by pleading and setting up, when sued as surety on said bond, the fact now urged, that the law establishing the county court of Washington county was unconstitutional and void But he failed to do this, and a judgment was rendered against him in that court, and he...