Smith v. Newsome

Court of Appeals of Georgia

Smith v. Newsome

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

CourtCourt of Appeals of Georgia

DecidedMay 2, 1921

Docket11960

StatusPublished

Cited by2 cases

This text of 107 S.E. 269 (Smith v. Newsome) 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

Smith v. Newsome, 107 S.E. 269, 26 Ga. App. 743, 1921 Ga. App. LEXIS 621 (Ga. Ct. App. 1921).

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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.

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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.

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Bluebook (online)

107 S.E. 269, 26 Ga. App. 743, 1921 Ga. App. LEXIS 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-newsome-gactapp-1921.

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