McCrary v. Corbin

Court of Appeals of Georgia

McCrary v. Corbin

103 S.E. 194, 25 Ga. App. 262, 1920 Ga. App. LEXIS 726

CourtCourt of Appeals of Georgia

DecidedMay 5, 1920

Docket11051

StatusPublished

Cited by2 cases

This text of 103 S.E. 194 (McCrary v. Corbin) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCrary v. Corbin, 103 S.E. 194, 25 Ga. App. 262, 1920 Ga. App. LEXIS 726 (Ga. Ct. App. 1920).

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Opinion

Jenkins, P. J.

(After stating the foregoing facts.)

It is urged by counsel for the plaintiff that since, under the ruling made in Clark v. Lee, 86 Ga. 28 (12 S. E. 184), the liability of the surety on the bond given by the defendant in such a proceeding “is limited to the judgment obtained in this ease,” a gross miscarriage of justice would result if the plaintiff be not thus allowed to set up the additional judgment for subsequently accrued rent against the insolvent defendant and his bondsmen in connection with the proceeding to make the’judgment of the court affirming the original recovery the judgment of the court below. It is indeed manifest, under the terms of the statute itself, that the liability of the sureties on the bond given by the defendant in the eviction proceeding is for “ such sum with cost as may be recovered against him [the defendant] on the trial of the case.” Civil Code, § 5387. His liability is of course limited by the terms of his contract. Westbrook v. Moore, 59 Ga. 204. There has been a trial of the issue made in the court below, which has resulted in a verdict and judgment for the plaintiff in a stated sum, and this judgment has been unconditionally affirmed by this court. In making the judgment of affirmance its own judgment, the most that the court below can do is to take it and enter it as it is. To thus enter another, different, and subsequent judgment would not be an adoption of what has been adjudicated here. This was what was held by this court when this case was last before it, and it is but the same question which again presents itself. This court cannot permit its judgment to be altered under the guise of a proceeding taken to adopt it, even in furtherance of the time-honored maxim that “For every right there is a remedy.” When the law, as in this case, seems to afford no adequate remedy, the party aggrieved is limited to the employment of such equitable proceedings as may be taken in aid of his action at law. See Barrett v. Maynard, 150 Ga. 82 (102 S. E. 896).

Judgment affirmed.

Stephens and Smith, JJ., concur.

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Jenkins, P. J.

(After stating the foregoing facts.)

It is urged by counsel for the plaintiff that since, under the ruling made in Clark v. Lee, 86 Ga. 28 (12 S. E. 184), the liability of the surety on the bond given by the defendant in such a proceeding “is limited to the judgment obtained in this ease,” a gross miscarriage of justice would result if the plaintiff be not thus allowed to set up the additional judgment for subsequently accrued rent against the insolvent defendant and his bondsmen in connection with the proceeding to make the’judgment of the court affirming the original recovery the judgment of the court below. It is indeed manifest, under the terms of the statute itself, that the liability of the sureties on the bond given by the defendant in the eviction proceeding is for “ such sum with cost as may be recovered against him [the defendant] on the trial of the case.” Civil Code, § 5387. His liability is of course limited by the terms of his contract. Westbrook v. Moore, 59 Ga. 204. There has been a trial of the issue made in the court below, which has resulted in a verdict and judgment for the plaintiff in a stated sum, and this judgment has been unconditionally affirmed by this court. In making the judgment of affirmance its own judgment, the most that the court below can do is to take it and enter it as it is. To thus enter another, different, and subsequent judgment would not be an adoption of what has been adjudicated here. This was what was held by this court when this case was last before it, and it is but the same question which again presents itself. This court cannot permit its judgment to be altered under the guise of a proceeding taken to adopt it, even in furtherance of the time-honored maxim that “For every right there is a remedy.” When the law, as in this case, seems to afford no adequate remedy, the party aggrieved is limited to the employment of such equitable proceedings as may be taken in aid of his action at law. See Barrett v. Maynard, 150 Ga. 82 (102 S. E. 896).

Judgment affirmed.

Stephens and Smith, JJ., concur.

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103 S.E. 194, 25 Ga. App. 262, 1920 Ga. App. LEXIS 726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccrary-v-corbin-gactapp-1920.

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