Smith v. Newsome

107 S.E. 269, 26 Ga. App. 743, 1921 Ga. App. LEXIS 621

Opinion

Jenkins, P. J.

While judgment against the sureties on a bond to dissolve an injunction and receivership cannot be entered in the main case, where the bond is conditioned otherwise than for the eventual condemnation money (Jordan v. Callaway, 138 Ga. 209, 75 S. E. 101), yet, where, as in this case, the obligation of the bond was conditioned to pay unto the plaintiff whatever sum may be shown to be due him under the contract set out in the petition, and the liability was not limited, as In the Jordan case, to an amount other than that which might be ultimately fixed and settled by the judgment or decree in the case, a summary judgment in the same case against the sureties on the bond was permissible, and an affidavit of illegality, based on the contention that one of the sureties had not had his day in court, could not properly be sustained. Civil Code (1910), § 3550; Harrell v. Kutz, 22 Ga. App. 235, 236 (95 S. E. 717).

Judgment reversed.

Stephens and Hill, JJ., concur.

Affidavit of illegality; from Mitchell superior court — Judge Wilson. October 10, 1920.

O. E. Grow, Gardner & Gardner, for plaintiff. II. G. Bell, for defendant.