Thompson v. Evans, 1 Div. 408

Decision Date01 November 1951
Docket Number1 Div. 408
Citation256 Ala. 379,54 So.2d 775
PartiesTHOMPSON v. EVANS et al.
CourtAlabama Supreme Court

Alex T. Howard, Mobile, for appellant.

Gordon & Gordon, Mobile, for appellees.

LIVINGSTON, Chief Justice.

The sole question presented for review is whether a properly executed power of attorney to sign all 'appearance bonds', includes the power, or confers the authority on the attorney in fact, to sign a bond or undertaking given by one on whom a writ of ne exeat is served.

In 1942 the Circuit Court, in Equity, of Mobile County, Alabama, entered a decree granting Vonceil Thompson a divorce from the bed and board of George H. Thompson, and awarded her $25.00 per week for the separate maintenance of herself and children.

On the 14th day of August 1947, pursuant to an order of court, the Register of the court issued a writ of ne exeat directing the Sheriff of Mobile County to arrest the said George H. Thompson and hold him until he executed bail in the sum of $500.00, conditioned as hereinbelow set out. George H. Thompson was arrested under the writ and was discharged upon given bond, and which bond is the subject-matter of this particular proceeding. One E. J. Green signed the names of the appellees C. V. Evans and T. J. Geary to the bond, adding underneath the signatures the words 'E. J. Green, Atty in Fact.'

On October 29, 1949, Vonceil Thompson petitioned the court to cause the Register to issue a rule directed to Evans and Geary requiring them to show cause why said bond should not be forfeited, and why they should not pay into court, for movant and her children, the sum of $400.00 which was alleged to be past due.

Evans and Geary, in answer to the rule, alleged that they never executed a bond, in their own names, as described in the petition, nor did they authorize anyone else to execute such a bond in their names.

After a hearing ore tenus, the trial court entered an order or decree discharging and relieving Evans and Geary from all liability on the bond. The court stated in its decree that 'the names of C. V. Evans and T. J. Geary were signed to said bond without their authority.'

The pertinent condition in the bond in question is as follows: 'Now, Therefore, if the said George H. Thompson will not go beyond the boundaries of this State without the consent of this Court, and will faithfully keep and perform all orders and decrees lawfully rendered by the Circuit Court of Mobile County, Alabama, sitting in Equity, in that certain suit of Voncile Thompson vs. George H. Thompson, numbered 16255 on the Equity docket of the Circuit Court of Mobile County, Alabama, and shall cause his appearance to be entered in said suit, continue such appearance and render himself amenable to the orders and processes of said Court, and to such processes as shall be issued to compel the performance of the final decree which may be rendered in this cause, and to appear before said Court when required, then this obligation to be void; otherwise, to remain in full force and effect.'

To support Green's authority to bind Evans and Geary, appellant relies on powers of attorney, dated December 17, 1946, as follows:

'Constituting E. J. Green, resident of the City of Prichard, Alabama, to do and to perform the acts for me on my own behalf the same as if I had performed them in my own proper person, to-wit:

'To sign my name in my own proper person, or my name by my said attorney-in-fact, to all appearance and appeal bonds to any of the following courts:

'Prichard Recorder's Court, Mobile Recorder's Court and the Mobile County Circuit Court.'

The question is, did the powers of attorney, executed by Evans and Geary, authorize Green to...

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2 cases
  • Pielage v. McConnell
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 15, 2008
    ...that the court retained jurisdiction to decide the case and that any decision it reached could be enforced. See Thompson v. Evans, 256 Ala. 379, 54 So.2d 775, 776 (1951) ("The purpose of the writ Cof ne exeati is to insure compliance with orders and decrees of courts of equity and to restra......
  • Stillwell v. Columbus Bank & Trust Co. of Russell County
    • United States
    • Alabama Court of Civil Appeals
    • December 1, 1995
    ...powers expressly granted, and those which are impliedly granted to effectuate the purpose of the express powers." Thompson v. Evans, 256 Ala. 379, 380, 54 So.2d 775, 776 (1951). See also, Sevigny v. New South Federal Savings & Loan Ass'n, 586 So.2d 884 (Ala.1991). It is clear from the langu......
1 books & journal articles
  • Section 11.77 Authority of Attorney-in-Fact Determined by Acts of the Principal
    • United States
    • The Missouri Bar Insurance Practice 2015 Chapter 11 Surety Bonds
    • Invalid date powers expressly granted and powers that are impliedly granted to effectuate the purpose of express powers. Thompson v. Evans, 54 So.2d 775 (Ala. 1951); Cont’l-St. Louis Corp. v. Ray Scharf Vending Co., 400 S.W.2d 467 (Mo. App. E.D. 1966). An agent cannot create his or her own authority.......

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