Woodall v. Smith

51 Ga. 171

• Court: Supreme Court of Georgia
• Decided: January 15, 1874
• Status: Published

Opinion

Trippe, Judge.

When the case was called, which was the last thing done that afternoon, and the court told the solicitor general he could take a judgment of forfeiture, the -security on the bail bond asked- the solicitor “ what he should do,” and he replied to him that “the best thing he could do would be to have the defendants in court as soon as he could get them there, and that he then told him he would not enter the judgment forfeiting the recognizance until the next morning.” No application was made to the court. The security swears, that acting on these statements of the solicitor general, he started by day-break the next morning with an officer, and by the time jury hours had arrived had both defendants in court. As soon as the attention of the court could be had, the fact that defendants were present to submit to trial was announced. The order of forfeiture having by this time been prepared and entered on the minutes, a motion was immediately made to set aside the judgment. This the court refused. The security had the right, when the case was called, to ask time of the court until next morning, to have his principals present. It was the last case called that afternoon, and the court adjourned after announcing that the solicitor general’ could take the judgment of forfeiture. What the solicitor said to the security made it unnecessary for that application to have been made to the court. What the court would have then done we cannot say. It had a discretion in the premises, and the security may have been induced, by what the solicitor general said, not to appeal to that discretion, or to have obtained counsel to do so for him. 'He followed the suggestions made by the state’s attorney, and did what he was advised-to do. He had the right to believe if he brought the defendants into court by the next morning, the final forfeiture would be saved. He did so. He paid all the price that was asked, and the state, by that act, had at its command two persons charged as criminals by the grand jury. We do not think that it would be a precedent inviting laches or. delay on the part of defendants to allow a security, under these facts, to have the forfeiture of his bond opened. There were other facts not herein mentioned which might have operated on the court to have allowed the security until the next morning, had his discretion been first appealed to. It is more than probable that that right was lost to the security by what passed between him and the solicitor general.

Judgment reversed.