Wolfsheimer v. Frankel

180 S.E. 834, 180 Ga. 765, 1935 Ga. LEXIS 557

• Court: Supreme Court of Georgia
• Decided: July 9, 1935
• Docket: No. 10520
• Status: Published

Opinion

Russell, Chief Justice.

A surety on a ne exeat bond which had been required in an alimony proceeding sought cancellation of the bond on the ground that his principal had appeared at all hearings in the proceeding, as required by tlie bond, and contended that for that reason the bond had become functus officio. It appeared per contra, that, though there had been final judgment in the superior court in the alimony proceeding, the judgment was under review in the Supreme Court. The cause was still pending, the ne exeat bond had not become functus officio, and the judge did not err in refusing to cancel the bond. This court has several times held that the obligation of a surety upon a ne exeat bond is that of a surety upon an appearance bond in a criminal case (see Lomax v. Lomax, 176 Ga. 605 (168 S. E. 863)), but the liability of a surety upon an appearance bond requires the appearance of the principal to abide the final judgment in the case. It appearing from the record in this proceeding that the final judgment of the superior court had been arrested by writ of error, the ne exeat bond was still of full force and effect. The judgment in the instant proceeding was correct, and must be

No. 10520. July 9, 1935.

Affirmed.

All the Justices concur, except Gilbert, J., absent. Herbert J. Haas and J. Kurt Holland, for plaintiff. Walker, Kilbride & Oonstangy, Mayson & Johnson, McElreaih & Scott, and Tidtuell & Broicn, for defendant.