Mobley v. Arnall , 72 Ga. App. 523 ( 1945 )

The court did not err in rendering a judgment absolute.

DECIDED JUNE 6, 1945. Reikes was convicted in the superior court of Fulton County for bigamy. He filed his motion for a new trial, which was overruled. He obtained a supersedeas bond in order to bring his case here for review. The plaintiff in error in this case, R. F. Mobley, signed the bond as security. The bond was in the usual form, binding Reikes to appear personally in the superior court of Fulton County to abide the final judgment of that court. This court affirmed the judgment. Reikes v. State, 71 Ga. App. 324 (30 S.E.2d 806). The remittitur from this court was duly sent to the superior court, where the case against Reikes was set down for final sentence at 10 o'clock a. m. Reikes did not appear. His bond was forfeited. All of the formalities appertaining to forfeiture of his bond were complied with. A rule nisi issued. Service was procured on the surety, the plaintiff in error here, with no service on the principal Reikes. The rule nisi required the surety to show cause at the next succeeding term why a judgment absolute should not be entered against him as surety. In response, the surety filed an answer. The issue thus formed came on to be and was heard regularly on February 23, 1945, when a judgment absolute was rendered against the surety. This hearing was had upon an agreed statement of facts. It is on this judgment that the bill of exceptions is based. For a clear understanding of the question presented here we will give first a summary of the germane portions of the defendant's answer, and secondly, the additional relevant facts under the stipulations. As to the answer, it alleged that the State Board of Pardons and Paroles, whom we will hereinafter call the board, did, on the 2d day of November, when the scire facias issued, grant a sixty-day reprieve to the defendant Reikes, and that therefore the court was without authority to issue a scire facias on the 2d day of November, and before the 2d day of January, the expiration of the sixty-day reprieve. The agreed statement of facts stipulated that the court, without the intervention of a jury, was authorized to render a judgment absolute unless the facts showed that such judgment should not be rendered. It was agreed that the matters of fact in the answer should be considered as true, with the following qualifications: "The case against Alex Reikes was set down by the court to be called and his bond forfeited if he did not appear at 10 o'clock a. m., November 2, 1944. Before that hour arrived Mr. Edward B. Everett, chairman of the said board, called the presiding judge over the telephone and stated that it was the intention of the board to grant the defendant Reikes a reprieve, if certain conditions were complied with. At 10 o'clock, court having convened, the presiding judge asked the assistant solicitor-general representing the State to call Mr. Everett over the telephone and inquire if such reprieve had been granted, and if Mr. Everett wished the judge to delay the matter, the judge stating that Mr. Everett had called him earlier in the day. The assistant solicitor-general left the courtroom, and upon returning stated to the court that he had talked with Mr. Everett over the telephone and that Mr. Everett had stated that the reprieve had not been granted, but that it would be granted, and that the judge could do as he pleased. The presiding judge recessed court until 11 o'clock. At 11 o'clock court was again convened and counsel representing the defendant Alex Reikes objected to further proceedings, stating that Mr. L. B. Gillebeau, associated with him on behalf of Reikes had advised him over the telephone that a reprieve had been granted. The State's case against Reikes was called, he did not appear, and the bond was ordered forfeited, all formalities having been complied with, and the rule nisi signed by the presiding judge. About an hour later a copy of the reprieve attached to said answer was delivered by messenger to the presiding judge. The security contends that by reason of the facts set up in his answer, as qualified by this stipulation, judgment absolute should not be rendered against him. Plaintiff contends that judgment absolute should be rendered against the security. It is agreed that the copy of an reprieve attached to security's answer is a true and correct copy of an order actually signed sometime during the day of November 2, 1944, by the State Board of Pardons and Paroles in said case." It is our opinion that under the circumstances above set forth the court did not err in entering a final judgment against the surety. We say this in full awareness that it is earnestly contended by counsel for the plaintiff in error that in doing so the judicial department did not view with proper consideration the matter of comity between the executive and judicial branches of our Government. In the act of the court in this case we discern no improper deference to the board. Indeed, the court sent the assistant solicitor to inquire as to the wishes of the board concerning the matter of reprieve about which the chairman of the board had personally communicated with the presiding judge. The chairman conveyed to the court that the reprieve had not been granted, but that it would be granted, but for the court to go ahead and do as it pleased. The court was recessed until 11 o'clock. The court convened again and one of the attorneys stated that he had been informed by another attorney that a reprieve had been granted. Then it was that a scire facias was ordered to issue and about an hour after the presiding judge ordered the scire facias to issue, a messenger handed him a copy of the reprieve from the board. Thus it will be seen that it was an hour after the action of the court before there was any official information or competent evidence that the reprieve had been granted. Prior to the time the messenger was sent by the board, the chairman thereof had informed the presiding judge in effect to use his own pleasure. It is inferable from this record that the board did not desire to issue the reprieve before the court had forfeited the bond. The board did not request the judge to wait. It is just as reasonably inferable that the board did not care to issue the reprieve ahead of the forfeiture, realizing that the period of the reprieve would expire before a judgment absolute could be taken in the forfeiture proceedings. Be this as it may, it must be kept in mind that nothing the board or the court did prevented the defendant from personally appearing at 10 o'clock on November 2, 1944, at the hour set for his appearance, and nothing that the court or the board did prevented him from personally appearing on February 23, 1945, three weeks after he had spent his reprieve. Certainly it can not be contended that at 10 o'clock on November 2d he or his attorneys knew that a reprieve would be granted. The chairman did not know it for he informed the judge that a reprieve would be granted provided Reikes met certain conditions. Yet Reikes did not appear at the hour and date set for his appearance. It appears from the records of this court that his sentence was affirmed on June 7, 1944, and a motion for a rehearing denied on the following June 24. He then made application to the Supreme Court for the writ of certiorari, which was denied on September 25, 1944. On the same day the remittitur from this court was forwarded to the superior court. It thus appears that Reikes ignored the conditions of his bond from September 25, 1944, until February 23, 1945. As to why he did not personally appear from September 25, 1944, until November 2 thereafter is not explained. It is explained why he did not appear during the period of sixty days beginning on November 2, 1944, after his bond had been forfeited until the expiration of the reprieve. But as to why he was absent during the period from the expiration of his reprieve until the judgment absolute was taken, there is no attempt at explanation. The record is pregnant with implications that bad faith on the part of the defendant was operating. We can not see that any discourtesy either to the defendant, or to the surety, or to the board was evidenced by the conduct of the court. It must be remembered that the condition of the bond was that the defendant would personally appear and answer the final judgment of the court. As to this provision he has completely with impunity ignored it. In so far as the record shows, he has never complied with his bond. His counsel argued that such has nothing to do with the case. We think it has all to do with it, else a supersedeas bond means nothing. This statement is meant to be no reflection whatsoever on the attorneys in the case. It may be conceded that they have proceeded with honor and diligence and in good faith, notwithstanding the conduct of Reikes.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.