Chastain v. Winn

95 S.E. 473, 22 Ga. App. 53, 1918 Ga. App. LEXIS 137

• Court: Court of Appeals of Georgia
• Decided: March 14, 1918
• Docket: 9100
• Status: Published

Opinion

Wade, C. J.

Suit was brought in the name of the commissioners of roads and revenues of Fulton county, for the use of Jones, against one. Stephens (a constable) as principal, and Chastain and Pearce as sureties, on a constable’s bond payable to the said commissioners, alleging that Stephens was insolvent, and that, in his official capacity he had collected certain funds belonging to Jones and' failed ’ and refused to pay over the same. Chastain and Pearce demurred upon the ground that the authority of the commissioners to institute or maintain the action in behalf of Jones did not appear, and no cause of action against them was set out; and each defendant filed a separate plea, admitting the execution of the bond, but denying liability thereon and all other allegations in the petition. Stephens made no appearance: Held:

(а) “Suit upon the bond of a constable may be brought in the name of any person" aggrieved by the official misconduct of the officer, against him and his sureties, without bringing against him any preliminary action to settle his liability to' the' aggrieved party for his alleged misconduct.” McClain v. Bonner, 122 Ga. 842 (3) (51 S. E. 36).

(б) It was wholly immaterial whether or not Jones, prior to the bringing of the action now under review, had brought suit a'gainst Stephens individually; and the admission of evidence touching the former suit, and of the judgment therein recovered, constitutes no ground for a reversal, in view of the undisputed testimony otherwise establishing the existence of the liability—Stephens, the principal of the bond, being a party to the action on trial and interposing no defense.

(c) The judge of the superior court did not err in overruling the certiorari. Judgment affirmed.

Jenkins and Luke, JJ., concur.