McClung v. McClung

91 S.E.2d 377, 93 Ga. App. 274, 1956 Ga. App. LEXIS 717

• Court: Court of Appeals of Georgia
• Decided: January 30, 1956
• Docket: 35946
• Status: Published

Opinions

Gardner, P. J.

The question to be determined is: Would the bond be subject to a summary judgment entered thereon by the court or would a new and independent suit be required to enforce it against the bondsmen? That portion of the bond which is pertinent to the determination of this case reads: “Now in order to guarantee his compliance with the order of the court to make said payments the defendant brings P. 0. McClung and Marlin Lamar and Joe T. Wheeler as security, and they jointly and severally bind themselves to comply with the order of the court up to the amount of said bond, and this bond is made in the principal sum of $1,000 in order to secure the compliance with the order of this court.” These defendants signed the bond for the simple purpose of guaranteeing this alimony money due by Hugh D. McClung. U. S. Fidelity &c. Co. v. Tucker, 165 Ga. 283 (140 S. E. 866), and Vickers v. Jones, 200 Ga. 338 (37 S. E. 2d 205), cited by the defendants, stated correct principles of law, but on the contrary support the conclusions we reach, and are not cause for reversal of the instant case under the facts. It is contended by counsel for the defendants that a summary judgment could not be entered on the bond in the instant case and that a new and independent suit would be required. In support of this contention counsel for the defendants cite Offerman &c. R. Co. v. Waycross R. Co., 112 Ga. 610 (37 S. E. 871). That case is not authority for reversal of the instant case. The instant case is an alimony case, a continuing thing. In Jackson v. Johnson, 164 Ga. 839 (139 S. E. 663), the Supreme Court held: “After the termination of a suit for divorce and alimony, in which the petitioner is granted alimony, where proceedings are had to enter judgment on a ne exeat bond executed by the defendant in such suit as principal and another as security to secure the release of the principal from jail, the suit for alimony and divorce is not ‘functum officio’ as relates to the proceeding to enter judgment on the bond; and where the petition or motion filed by the plaintiff states the above facts and alleges a breach of the bond, the security is shown to have some ‘connection’ with the suit.” See also Alexander v. Slear, 177 Ga. 101 (169 S. E. 304); Jordan v. Sexton, 42 Ga. App. 218 (155 S. E. 356), and Moore v. Edmondson, 184 Ga. 818 (193 S. E. 780). In the case at bar the bond does not create an independent liability but the liability is a continuing thing arising out of the judgment of the court awarding alimony to the plaintiff. Had this been an action other than an alimony proceeding, in absence of appeal, the court would have lost jurisdiction of the matter after judgment had been rendered. The court retains jurisdiction and may enforce the payment of any judgment it renders in such a case, either by confining the defendant to jail or by requiring a bond to assure compliance with its judgment as an alternative. It would be expensive to require a lawsuit on the bond each and every time an alimony payment was not forthcoming. It cannot be argued that the court has no jurisdiction to find Hugh D. McClung in contempt in the case at bar. The trial judge did find Hugh D. McClung in contempt, and in pursuance of such contempt order rendered judgment on the bond. The procedure for judgment on the bond is ancillary to the attachment for contempt and it is unnecessary to require an action on the bond other than a summary proceeding. It is, and we hold it to be, an eventual condemnation bond. See Vickers v. Jones, supra.

The trial court did not err in overruling the demurrers of the defendant to the petition and in entering up judgment against the bondsmen.

Judgment affirmed.

Felton, C. J., Carlisle, Quillian and Nichols,, JJ., concur. Townsend, J., dissents.