Washburn v. Foster
| Decision Date | 24 October 1952 |
| Docket Number | No. 1,No. 34214,34214,1 |
| Citation | 73 S.E.2d 240,87 Ga.App. 132 |
| Parties | WASHBURN v. FOSTER et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. There is no authority of law for a sheriff or other arresting officer to accept a cash bond or a deposit of money in lieu of bail or in addition to bail from one charged with violating one of the criminal laws of this State.
(a) When an arresting officer requires or accepts a cash bond or a deposit of money in lieu of bail or in addition to bail from one charged with violating one of the criminal laws of this State or from one signing the bond as surety for such person, the money remains the property of the person depositing it with such officer, and the officer holds it in trust for the depositor.
(b) Where a sheriff accepts a cash bond or a deposit of money in lieu of bail or in addition to bail from a surety for one charged with violating one of the criminal laws of this State, and it does not appear that the sheriff and the surety knowingly violated the laws of this State or that the money was deposited by the surety and accepted by the sheriff with criminal intent on their part, the surety is not estopped from maintaining an action to recover the money so deposited.
(c) The act of a sheriff in illegally requiring and accepting a cash bond or a sum of money in lieu of bail or in addition to bail from a surety for one charged with an offense against the laws of this State is an act done colore officii.
(d) The action, having been instituted within 20 years from the alleged breach of the bond, was not barred by the statute of limitations. Furthermore, this action was not barred in that it was brought within 4 years from the date of the dissolution of the garnishment proceeding referred to in the opinion, infra.
(e) Where no contention was made in the court below that the plaintiff had pursued a different remedy, and by reason thereof was barred from maintaining the present action, or that the issues involved in the instant case had already been passed upon in another case between the plaintiff and the defendants or their privies, the contention cannot be raised for the first time on appeal in this court.
(f) The petition set out a cause of action for breach of the official bond of the sheriff, and the trial judge erred in sustaining the demurrers to the petition.
E. E. Washburn brought suit against A. B. Foster, Sheriff of Folton County, and the surety on his official bond, seeking to recover $10,000, which the plaintiff alleged he had deposited with the sheriff in order to obtain the release of one Fred Martin, who was in the custody of the sheriff on January 5, 1945, to answer a charge of misdemeanor in the Criminal Court of Fulton County. The petition alleges, in substance: that an appearance bond of $15,000 was required by the sheriff as bail for Martin, and he required in addition to an appearance bond, which was duly executed and approved, that $15,000 as a cash bond be turned over to him; that the plaintiff put up with the sheriff a cash bond of $10,000; that Martin appeared in court as required by said bond and was convicted on January 15, 1945, and after his conviction it was necessary for him to make a supersedeas bond, to be approved by the Clerk of the Criminal Court of Fulton County, in order to secure his release from the custody of the defendant sheriff pending a review of his case by the appellate courts of this State; that the plaintiff and others signed a certiorari or appeal bond for Martin, which was approved by the Clerk of the Superior Court of Polk County on February 1, 1945, and, on February 3, 1945, by the Clerk of the Criminal Court of Fulton County, who accepted the certiorari bond; that the plaintiff authorized the defendant Foster to pay the $10,000 to the Clerk of the Criminal Court of Fulton County, and the defendant Foster accepted the assignment and agreed to do so, but he failed to deliver the money to the Clerk of the Criminal Court of Fulton County and failed to pay the money to the plaintiff; that thereafter, on October 22, 1947, Martin was arrested to serve the sentence imposed and, as a result, the appeal bond was exonerated and became null and void. The prayers of the petition are for process and for judgment against the defendants for $10,000 with interest from the time the money was deposited with the defendant Foster.
The defendants demurred to the petition upon the ground that it failed to set out a cause of action against either of them, and that any claim the plaintiff might have had against them was barred by the statute of limitations. The trial judge sustained these grounds of demurrer, and the plaintiff excepted.
George G. Finch, James L. Finch, Attlanta, for plaintiff in error.
Harold Sheats, E. A. Wright, Standish Thompson, Durwood, Pye, Smith, Field, Doremus & Ringel, Atlanta, for defendants in error.
There is no authority of law for a sheriff or arresting officer to accept a cash bond or a deposit of money in lieu of bail from one charged with a criminal offense against the laws of this State; and, when an arresting officer requires or accepts a cash bond or a deposit of money in lieu of bail, the money remains the property of the person depositing it with such officer, and the officer holds it in trust for the depositor. Holt v. State, 11 Ga.App. 34, 74 S.E. 560. Since a sheriff has no authority under the laws of this State to require or accept a cash bond or a deposit of money in lieu of bail, it follows that there is no authority of law by which money so deposited could legally be forfeited. In this connection, see Scarboro v. State, 207 Ga. 449, 62 S.E.2d 168. The fact that, under the allegations in the present case, it appears that the arresting officer required a cash bond or a deposit of cash in addition to the regular bond required of the said Martin, does not change the general rule that a sheriff or other arresting officer of this State has no authority to accept a cash bond or a deposit of cash in lieu of bail or in addition to the bail require by law. It appears that the said Martin was charged with a misdemeanor, and, under the law of this State, he was entitled as a matter of law to furnish bail in a reasonable amount with the sureties on the bond to be approved by a sheriff of this State. Code, § 27-902. There is no provision of law whereby a sheriff can require such sureties to deposit with him a cash bond or a deposit of money in addition to the bail required by law before he will accept the bail tendered him; and where this is done the money so deposited remains the property of the person depositing it, and the sheriff holds it as trustee for the depositor.
Of course, if the sheriff has legally paid...
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Wilson v. State, A93A1692
...subdivision can have no title to or legal interest in the property. Holt v. State, 11 Ga.App. 34 (74 SE 560); Washburn v. Foster, 87 Ga.App. 132(1) (73 SE2d 240); Scarboro v. State, [207 Ga. 449(2) (62 SE2d 168) ]." Land v. State, 103 Ga.App. 496, 497(1), 119 S.E.2d 809 All of these cases s......
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Washburn v. Foster
...The petition in this case was held to state a cause of action for a breach of the defendant sheriff's official bond in Washburn v. Foster, 87 Ga.App. 132, 73 S.E.2d 240, which see; and where, upon the trial of the case every material allegation of the petition was either admitted by the def......
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Land v. State
...subdivision can have no title to or legal interest in the property. Holt v. State, 11 Ga.App. 34, 74 S.E. 560; Washburn v. Foster, 87 Ga.App. 132(1), 73 S.E.2d 240; Scarboro v. State, supra. It was, however, lawful for this defendant to accept cash bonds. Code § 27-508. He did so by virtue ......
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State v. Herrman
...indictment was drawn contains the language, 'by color of or in the execution of his office.' It was held in the case of Washburn v. Foster, 87 Ga.App. 132, 73 S.E.2d 240, that 'An officer's acts are done 'colore officii' when they are of such a nature that his official position does not aut......