2021 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 6 - Amendments
§ 9-10-131. Bonds in Judicial Proceedings Amendable
All bonds taken under requirement of law in the course of a judicial proceeding may be amended and new security given if necessary.
(Orig. Code 1863, § 3434; Code 1868, § 3454; Code 1873, § 3505; Code 1882, § 3505; Civil Code 1895, § 5123; Civil Code 1910, § 5707; Code 1933, § 81-1204.)
Cross references.- Corresponding provision relating to criminal procedure, § 17-6-18.
JUDICIAL DECISIONS
Amendment is timely if made before entry of order of dismissal.
- The motion to amend a bond given on filing an affidavit of illegality is in time if made before any order or judgment dismissing the illegality has been entered, although the court has orally announced that the motion to dismiss is sustained. Lytle v. DeVaughn, 81 Ga. 226, 7 S.E. 281 (1888).
Bond not amendable where wife signs as security for spouse.
- Where a wife signs as security an appeal bond given by her husband, and there is no other security on the bond, the appeal is a nullity and the bond cannot be amended by the addition or substitution of another security. Dillingham v. Eslinger, 32 Ga. App. 36, 122 S.E. 627 (1924).
Bond in attorney's name for plaintiff amendable.
- The execution of a bond by the attorney in the attorney's own name for the plaintiff by name, instead of in the name of the plaintiff by the attorney, is amendable. Whitley v. Jackson, 34 Ga. App. 286, 129 S.E. 662 (1925).
Bond in certiorari is not amendable, since this section does not apply to certiorari, which is an entirely different proceeding from an appeal. Hunter v. Lanier, 74 Ga. App. 177, 39 S.E.2d 79 (1946) (see O.C.G.A. § 9-10-131).
Bonds unamendable where appellant is own surety.
- The only instances where appeal bonds have been held to be nullities and not amendable are those cases in which the appellant in effect became the appellant's own surety. Hunter v. Lanier, 74 Ga. App. 177, 39 S.E.2d 79 (1946).
Appellants in a court of ordinary must give bond, which bond may be amended or new security may be given, if necessary. Peppers v. Peppers, 96 Ga. App. 668, 101 S.E.2d 105 (1957).
Where corporation is purported surety, bond must show power of attorney.
- Where the purported surety on appeal bond is a corporation, and its signature is made by one who purports to act as its attorney in fact, the appeal is subject to dismissal unless the bond is accompanied by a power of attorney showing the authority of the one purporting to act for the corporation in executing a bond. Maddox v. Waldrop, 60 Ga. App. 702, 4 S.E.2d 684 (1939).
Bond executed by one prohibited by power of attorney is nullity.
- Where the act of the individual executing an appeal bond, purportedly as attorney in fact for an indemnity company, was without any authority and was expressly prohibited from so doing by the power of attorney attached to the bond, the bond was without a surety or security and was a nullity, not merely a defective or insufficient instrument; therefore, the appeal was likewise a nullity for want of lawful security or surety. Maddox v. Waldrop, 60 Ga. App. 702, 4 S.E.2d 684 (1939).
The bond executed by an applicant for garnishment is amendable under this section; where neither the obligations of the sureties are altered nor the rights of the opposite party prejudiced, such bond may be amended in any manner to conform to the requirements of the statute, without the consent of the sureties. Carrollton Bank v. Glass, 35 Ga. App. 89, 132 S.E. 238 (1926) (see O.C.G.A. § 9-10-131).
Bond in mortgage fi. fa. for postponing sale of personal property amendable.
- A bond given by the defendant in a mortgage fi. fa. when the defendant's affidavit of illegality is filed for the purpose of postponing the sale of personal property comes within this section and is amendable. Miller Serv., Inc. v. Miller, 76 Ga. App. 143, 45 S.E.2d 466 (1947), later appeal, 77 Ga. App. 413, 48 S.E.2d 761 (1948) (see O.C.G.A. § 9-10-131).
Judgment below cures amendable defect absent objection by plaintiff.
- Where the bond given by defendant in a mortgage fi. fa. is amendable and the plaintiff makes no objections to the form of the bond in the court below and makes no motion to dismiss the affidavit, the judgment in the trial below cures this amendable defect. Miller Serv., Inc. v. Miller, 76 Ga. App. 143, 45 S.E.2d 466 (1947), later appeal, 77 Ga. App. 413, 48 S.E.2d 761 (1948).
Replevy bond given on filing affidavit of illegality is amendable by changing obligee and condition to make the bond conform to statute. Gelders v. Mathews, 6 Ga. App. 144, 64 S.E. 576 (1909); Smith v. Powell, 134 Ga. 356, 67 S.E. 936 (1910); Sherman v. Morris, 17 Ga. App. 446, 87 S.E. 709 (1916).
Replevy bond is amendable by changing name of obligee to make it conform to statute where the opposite party is not prejudiced thereby, and this may be done without the consent of the sureties where their obligations are not altered. J.S. Cowart & Sons v. Cook, 55 Ga. App. 717, 191 S.E. 173 (1937).
Cited in Edmonds Shoe Co. v. Colson, 41 Ga. App. 283, 152 S.E. 608 (1930); Veneer Mfg. Co. v. Hill, 72 Ga. App. 28, 32 S.E.2d 838 (1945); Gordon v. Commercial Auto Loan Corp., 85 Ga. App. 808, 70 S.E.2d 406 (1952).
RESEARCH REFERENCES
Am. Jur. 2d.
- 12 Am. Jur. 2d, Bonds, § 1 et seq.
C.J.S.- 11 C.J.S., Bonds, § 1 et seq.
