SPRING-U BONDING COMPANY, INC. v. State

408 S.E.2d 831, 200 Ga. App. 533, 1991 Ga. App. LEXIS 1086

• Court: Court of Appeals of Georgia
• Decided: July 16, 1991
• Docket: A91A0560
• Status: Published

Opinions

Carley, Judge.

The trial court entered an order denying appellant-bonding company’s motion to set aside and vacate a bond forfeiture proceeding. Appellant appeals directly from that order.

No money judgment has yet been entered in the instant case. Accordingly, the first issue for resolution is whether we have jurisdiction. “[E]ven though an order does not specify that it is a grant of final judgment, it nevertheless constitutes a final judgment within the meaning of [OCGA § 5-6-34 (a) (1)] where it leaves no issues remaining to be resolved, constitutes the [trial] court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court. [Cit.]” (Emphasis supplied.) Caswell v. Caswell, 157 Ga. App. 710 (278 SE2d 452) (1981). Assuming that the trial court’s order in the instant case leaves no issues remaining to be resolved, it is nevertheless clear that the instant order cannot and does not constitute the trial court’s final ruling on the merits of the action.

“A surety on a criminal bond or recognizance has the right to insist that his liability should be fixed upon him according to law. [Cit.]” (Emphasis supplied.) Griffin v. State of Ga., 194 Ga. App. 624, 625 (2) (391 SE2d 675) (1990). “In this State criminal bonds or recognizances must be enforced according to the procedure prescribed by statute. . . .” (Emphasis supplied.) Garner v. Chambers, 75 Ga. App. 756 (1) (44 SE2d 507) (1947). Among those statutes which prescribe the applicable procedure in the instant case is OCGA § 17-6-71 (b), which clearly provides: “If at the execution hearing it is determined that judgment should be entered, the judge shall so order.” (Emphasis supplied.) Thus, it is apparent that only the entry of a final judgment would constitute the final ruling on the merits of the instant bond forfeiture action. Clearly, the trial court’s instant order — wherein it purports only to deny appellant’s motion to set aside and vacate the bond forfeiture proceeding — is a preliminary order and not a final judgment. Since it will not be “set aside or vacated,” the proceeding will presumably now continue until such time as a final judgment pursuant to OCGA § 17-6-71 (b) is entered. At that time, but not before, appellant would be entitled to appeal. Accordingly, the instant appeal must be dismissed.

Appeal dismissed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur. Banke, P. J., dissents.