2021 Georgia Code
Title 45 - Public Officers and Employees
Chapter 4 - Official Bonds
§ 45-4-25. Actions on Bonds of Public Officers Authorized; Jurisdiction

Actions on bonds taken from public officers may be brought by any person aggrieved by the official misconduct of the officer, in his own name, in any court in this state having jurisdiction thereof, without an order for that purpose. No such action shall be instituted or maintained in any other state. Except as authorized in this Code section, actions on bonds taken from public officers shall be brought in the name of the Governor and by his written consent or by the written consent of the obligee named in such bond, for the use of such aggrieved person; provided, however, that no action on the bond of any public officer of the state to recover damages flowing to the state or the public on account of the official misconduct of such officer shall be instituted or maintained unless brought in the name of the Governor for the use of the state and by his written authorization. Any such action on the bond of any public officer of any county or other political subdivision of the state to recover damages flowing to such county or other political subdivision or the public shall not be instituted or maintained unless brought in the name of the obligee in such bond for the use of such political subdivision and by the written authorization of the governing body of such political subdivision.

(Ga. L. 1853-54, p. 57, § 1; Orig. Code 1863, § 14; Code 1868, § 12; Code 1873, § 12; Code 1882, § 12; Civil Code 1895, § 12; Civil Code 1910, § 12; Code 1933, § 89-420; Ga. L. 1959, p. 411, § 1.)

- Substitution of parties in action against public officer when officer dies, resigns, etc., during pendency of action, § 9-11-25.

- Ga. L. 1959, p. 411, § 2, not codified by the General Assembly, provides that the Act shall be deemed to be remedial in nature and shall be given retrospective application. It shall apply to pending suits. The plaintiff in any action on the bond of any public officer of the State of Georgia then pending in any court outside of the State of Georgia may dismiss such action and renew the same in any court of this state having jurisdiction thereof within six months from March 18, 1959. In default thereof, the privilege granted by this section by the state is withdrawn and such action shall abate. Any such renewal action shall be deemed to have been filed on the same date as any such original suit.

This section applies to the bond of every public officer. Maryland Cas. Co. v. Smith, 56 Ga. App. 154, 192 S.E. 449 (1937).

- The provisions embraced in this section were intended to be applicable only to the public officers of this state who are required by general law to give bonds for the faithful performance of duties they owe to the public at large. National Sur. Co. v. Seymour, 177 Ga. 735, 171 S.E. 380 (1933).

§ 45-4-25 has no application to a bond required by a municipality alone. - The provisions embraced in former Code 1933, §§ 89-407 and 89-420 (see now O.C.G.A. §§ 45-4-23 and45-4-25) were intended to be applicable only to the public officers of this state who are required by general law to give bonds for the faithful performance of duties they owe to the public at large. Former Code 1933, §§ 89-407 and 89-420 were not, therefore, to be regarded as having any application whatever to a bonded officer of a municipality who is required, by special legislation relating to that municipality alone, to give such a bond as the mayor and council may deem necessary to the proper protection of the city itself. Collins v. United States Fid. & Guar. Co., 72 Ga. App. 875, 35 S.E.2d 474 (1945).

When the instrument sued on in an action against a municipal police officer for false arrest, is not a statutory official bond, and consequently can be enforced only according to the terms and obligations stated in the bond, the terms of the statute cannot be read into the bond so as to authorize a suit in favor of a member of the public. Collins v. United States Fid. & Guar. Co., 72 Ga. App. 875, 35 S.E.2d 474 (1945) (decided under former Code 1933, § 89-418 as it appeared prior to 1975).

§ 45-4-25 inapplicable to any bond not required by law at time of its creation. - Since the bond was not required by statute or law at the time of its creation, it could not and did not "stand in the place of the official bond," and a plaintiff cannot sue thereon in plaintiff's own name as the "person aggrieved." National Sur. Co. v. Seymour, 177 Ga. 735, 171 S.E. 380 (1933).

- A joint suit can be brought against a bond company and public officer without first obtaining a judgment against the tort-feasor, although there is no express provision authorizing a joint suit. Laster v. Maryland Cas. Co., 46 Ga. App. 620, 168 S.E. 128 (1933).

An action on the bond against the officer and the surety is an action ex contractu. Cantrell v. National Sur. Co., 46 Ga. App. 202, 167 S.E. 314 (1932).

- When a public officer damages another by the officer's acts colore officii or by official misconduct, the surety on official bond is not liable for any greater sum than the penal amount of the bond. Cantrell v. National Sur. Co., 46 Ga. App. 202, 167 S.E. 314 (1932).

- When a bond was executed by a bank which had been legally designated as a depository to receive money for a county in which the treasurer has been abolished, and the bond was conditioned upon the faithful discharge of its duties as county depository and made payable to the ordinary of the county, the commissioner could issue a summary execution in the name of the county, against the bank as the depository and the sureties upon the bond, upon the failure of the bank to pay over county funds belonging to the county which had been deposited in the bank as the county depository. Carter v. Veal, 42 Ga. App. 88, 155 S.E. 64 (1930).

Cited in American Sur. Co. v. Robinson, 53 F.2d 22 (5th Cir. 1931); Talmadge v. McDonald, 44 Ga. App. 728, 162 S.E. 856 (1932); Matthews v. Rowell, 49 Ga. App. 673, 176 S.E. 802 (1934); Fleming v. United States Fid. & Guar. Co., 146 F.2d 128 (5th Cir. 1944); Fidelity-Phenix Ins. Co. v. Mauldin, 118 Ga. App. 401, 163 S.E.2d 834 (1968); Busbee v. Reserve Ins. Co., 243 Ga. 371, 254 S.E.2d 324 (1979).

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, § 480 et seq.

- 67 C.J.S., Officers and Public Employees, §§ 489, 490, 491.

- Jurisdiction of action upon a bond of a public officer of another state or country, 26 A.L.R. 1001.

Liability of public officer or his bond to public body in respect of fees or charges which he illegally or improperly collected from members of public, 99 A.L.R. 647.

Suit against public officer to recover possession of property as suit against state or federal government, 160 A.L.R. 332.

What period of limitation governs in an action against a public officer and the surety on his official bond, 18 A.L.R.2d 1176.