Summary
declining to construe rule nisi as requiring defendant to personally appear in court rather than through counsel
Summary of this case from In re Estate of CoutermarshOpinion
15191.
JUNE 7, 1945. REHEARING DENIED JULY 6, 1945.
Alimony. Before Judge Crow. Grady superior court. March 5, 1945.
John H. Payne and Louis H. Foster, for plaintiff.
R. A. Bell, for defendant.
Where, on the trial of a proceeding to declare a ne exeat bond forfeited, the evidence was conflicting on the question whether the defendant had removed beyond the jurisdictional limits of the State, and the uncontradicted evidence, while showing that with the exception of the first hearing, he had not been present in person, showed that he had been represented by counsel at all the hearings, and failed to show that he had been ordered by the court to appear in person, it cannot be held as a matter of law that the trial judge abused his discretion in refusing to enter a judgment declaring that the bond had been forfeited.
No. 15191. JUNE 7, 1945. REHEARING DENIED JULY 6, 1945.
On June 23, 1939, Mrs. Rosa Adams filed in Grady superior court a suit for divorce and alimony. On the same day a rule nisi and a writ of ne exeat republica were issued, requiring the defendant to give bond in the sum of $500. A bond, conditioned not to remove beyond the jurisdictional limits of the State, and to be in court when required by the court's order, was signed by J. S. Adams as principal and E. L. Moore as surety. On August 22, 1940, an order was granted awarding to the petitioner $30 per month as temporary alimony and $50 attorney's fees. The defendant excepted to the award of temporary alimony and that judgment was affirmed. Adams v. Adams, 191 Ga. 537 ( 13 S.E.2d 173).
On April 21, 1942, Mrs. Adams filed a petition against the above principal and his surety, addressed to the judge of the superior court, in which, as amended, she alleged facts substantially as indicated above, and also the following: While the case was pending in the Supreme Court the defendant had breached the bond by absenting himself from and remaining beyond the limits of the State. There is due and unpaid on the judgment the sum of $570. On June 25, 1941, she had applied for and obtained a rule nisi requiring the defendant to show cause why he should not be attached for contempt for failing to comply with the judgment awarding temporary alimony. Service could not be made because the defendant had remained without the jurisdiction of the court. By reason of the foregoing facts the bond has been breached. She prayed that she recover of the defendant and his surety the sum of $500, and that a rule nisi issue requiring them to show cause why judgment as prayed for should not be granted. A rule nisi was duly issued.
E. L. Moore, the surety, filed an answer which denied material allegations of the petition and averred substantially the following: The defendant did not remove beyond the limits of the State, but on the contrary, during the period in question and since the final termination of the case, has been within the jurisdiction of the Albany judicial circuit. The superior court of Grady County was without jurisdiction because the defendant was not a resident of that county when the divorce suit was filed. The surety prayed that no execution be entered against him on the bond, and that, in the event the court sustained the defense as to jurisdiction, the ne exeat bond be canceled. An amendment to the answer averred the following: On the first trial of the divorce the jury found in favor of the defendant, and, the petitioner's motion for new trial being overruled, she excepted. The judgment denying her motion for new trial was affirmed. Adams v. Adams, 195 Ga. 479 ( 24 S.E.2d 683). The amendment prayed that the relief sought by the petitioner be denied, and that the ne exeat bond be declared canceled as functus officio.
On the trial of the proceeding to forfeit the bond, the pleadings were introduced in evidence, together with documentary evidence offered by the petitioner, including: (1) The ne exeat bond; (2) an execution for the accrued temporary alimony, which contained an entry, "Diligent search made, and no property of the defendant found upon which to levy the within fi. fa." There was also testimony for the petitioner that, with the exception of the first hearing for temporary alimony, the defendant had not appeared in person at any of the subsequent hearings and that he had failed to abide the judgments of the court. A witness for the petitioner testified on cross-examination that the defendant had been represented by counsel at all of the hearings. After hearing evidence the court rendered the following judgment: "The above . . matter having been submitted to the court for . . determination, . . upon a consideration of the evidence and testimony submitted at said hearing, and the court being fully advised in the premises, it is hereby ordered . . that the relief sought by the plaintiff in said proceeding be and the same is hereby denied."
In a direct bill of exceptions the petitioner assigns error on the above judgment as being contrary to law and the evidence, and insists that the judge should have granted the application for the forfeiture of the bond.
A controlling question is whether the evidence demanded a finding by the trial court that the terms of the ne exeat bond had been breached.
There was a conflict in the evidence as to whether or not the defendant had violated the first condition of the bond, to wit, that he should not remove beyond the jurisdictional limits of the State, and accordingly it can not be held as a matter of law that the trial judge abused his discretion, as contended, in refusing to declare the bond forfeited on the ground that the defendant had absented himself from and remained beyond the limits of the State. A different result is not required by Freeman v. Freeman, 143 Ga. 788 ( 85 S.E. 1038); Pepper v. Pepper, 169 Ga. 832, 840 ( 152 S.E. 103); Alexander v. Slear, 177 Ga. 101 ( 169 S.E. 304); Moore v. Edmondson, 184 Ga. 818 ( 193 S.E. 780), relied on by the plaintiff, where judgment of the trial court, instead of refusing to declare the bonds forfeited as was done in the case at bar, found that the terms of the ne exeat bonds had been breached.
Another question is whether the defendant had violated the second condition of the bond, namely, to be in court when required by the court's order. In reference to this provision of the bond, the uncontradicted evidence showed that the defendant had been present in person during the hearing for temporary alimony, and, while not present in person at subsequent hearings, had been represented by counsel. Counsel for the petitioner insist that failure of the defendant to appear in person, in response to the rule nisi calling on him to show cause why he should not be adjudged in contempt for failure to pay temporary alimony, and in response to the application to declare the ne exeat bond forfeited, had violated the provision of the ne exeat bond which required the defendant to be in court when required by the court's order. It does not appear that the defendant was ever adjudged in contempt as was done in Swanson v. Douglas, 150 Ga. 650 ( 105 S.E. 161). Nor does it appear from the record that the trial judge ever ordered the defendant to appear in person. Under the pleadings and evidence, the trial judge in the exercise of his discretion no doubt could have ordered that the defendant appear in person or suffer the bond to be forfeited. However, in the trial of civil cases, parties litigant are frequently permitted by the court to be represented by counsel instead of appearing in person, and in the absence of a showing that the judge had ordered the defendant to appear in person, and where he did appear through his counsel at all of the various hearings, it can not be held as a matter of law that his failure to appear in person violated the second condition of the bond.
The judgment complained of did not decree cancellation of the bond but merely refused the petitioner's prayer for a judgment of $500 against the defendant and his surety. Therefore it becomes unnecessary to make any ruling upon the right of the petitioner to recover the accrued temporary alimony, or upon the question whether, under the decision in May v. May, 146 Ga. 521 ( 91 S.E. 687), the bond should have been canceled as functus officio.
Applying the above principles to the pleadings and evidence, the trial court did not err in refusing to declare the bond forfeited.
Judgment affirmed. Bell, C. J., Jenkins, P. J., Duckworth and Wyatt, JJ., concur.