Opinion
44313.
SUBMITTED MARCH 3, 1969.
DECIDED MAY 9, 1969. REHEARING DENIED JUNE 4, 1969.
Dispossessory warrant. Wayne Superior Court. Before Judge Flexer.
Ronald F. Adams, for appellant.
Zorn Royal, William A. Zorn, for appellee.
Since the Supreme Court transferred the case sub judice to this court there was no valid constitutional attack made on statutory provisions which are controlling. Under the construction our courts have placed on Code § 103-209, in conjunction with Code § 61-303, a surety takes the fortunes of his principal; upon judgment being entered against the principal it is lawful to enter judgment against the surety at the same time without the necessity of bringing suit. In such instance, the surety can not complain of lack of notice or opportunity of being heard prior to that judgment.
SUBMITTED MARCH 3, 1969 — DECIDED MAY 9, 1969 — REHEARING DENIED JUNE 4, 1969 — CERT. APPLIED FOR.
H. G. Smith, appellee here, filed a dispossessory warrant pursuant to the provisions of Code Ch. 61-3 against Mrs. Blanche E. Allen, as tenant. Mrs. Allen filed a counter-affidavit and the requisite bond under Code § 61-303 on which William J. A. O'Leary, appellant, was the surety. Subsequent to the instant action a separate action had been filed by Smith against Mrs. Allen which was disposed of and a writ of possession issued thereunder, Mrs. Allen being evicted from the property. Since Mrs. Allen was removed from the property in question the sole issue remaining for determination in this case was the amount of rental value. This issue was duly submitted to a jury which rendered a verdict in favor of the appellee, Smith. Judgment was entered up therein against the principal, Mrs. Allen, and her surety, O'Leary.
The appellant, O'Leary, filed a motion to set aside the judgment against him and alleged that the judgment was error for the following reasons: that the petition did not name him as a party defendant in the case and that he has never been served with process, summons, or pleadings, or any copy of the same; that he has never waived process and summons; that he has never been legally served or waived service of the complaint upon which the judgment was rendered; that the rendition of the judgment against him violates his constitutional rights under the Fourteenth Amendment to the U.S. Constitution in that the issuance of a judgment against him without service of process or summons upon him deprived him of his property without due process of law. The motion to set aside was overruled and from this judgment an appeal was taken.
For previous appearances of this case, see Smith v. Allen, 222 Ga. 607 ( 151 S.E.2d 138); Smith v. Allen, 115 Ga. App. 80 ( 153 S.E.2d 648); Allen v. Smith, 223 Ga. 265 ( 154 S.E.2d 605).
The Supreme Court in its opinion transferring the case sub judice to this court stated that no basis for equitable relief was alleged and this case involved the application of unquestioned and unambiguous provisions of the Constitution to a given state of facts and did not involve the construction of some constitutional provision. Since the Supreme Court also has jurisdiction, "in all questions in which the constitutionality of any law of the State of Georgia or of the United States is drawn in question" (Art. VI, Sec. II, Par. IV of the Georgia Constitution), this was a holding in effect that the appellant failed to raise any question as to the constitutionality of statutes which are controlling in this case. See Felker v. City of Monroe, 22 Ga. App. 301 ( 95 S.E. 1023), and Tomlinson v. Sadler, 99 Ga. App. 482 (1) ( 109 S.E.2d 84).
In numerous cases, it has been pointed out that, absent a valid attack upon the same, a statute is presumed to be constitutional. Connelly v. Balkcom, 213 Ga. 491 (1) ( 99 S.E.2d 817), and Adams v. Ray, 215 Ga. 656, 657 ( 113 S.E.2d 100). As stated in Tooke v. State, 4 Ga. App. 495 (1c) ( 61 S.E. 917), whether a statute is constitutional or not is determined by the construction placed upon it by the appellate courts. Since the provisions here involved are presumptively constitutional, we therefore consider them as construed by our courts.
Code § 103-209 provides: "It shall be lawful to enter judgment against principal and sureties at the same time, as in cases of appeal, in all cases in law or equitable proceedings when a bond has been given by the losing party conditioned to pay the eventual condemnation money in said action, and it shall not be necessary to bring suit upon said bond." In construing Code § 103-209 in conjunction with Code § 61-303 the Georgia courts have held: "Such a `bail or security takes the fortunes of his principal, and is bound equally with him by the judgment in the main action. . . The bail can no more go behind the judgment, or attack it, by affidavit of illegality, after it is duly entered against both, than can the principal.' Jackson v. Guilmartin, 61 Ga. 544. The liability of sureties is absolutely fixed by the judgment against their principal, and they must stand or fall by the result of his defense, such being the express undertaking in the bond. If the judgment has been rendered against him by a court of competent jurisdiction, they are absolutely bound by it, and will not be heard to impeach or attack it in any way for causes which were or could have been matter of defense by their principal." Ford v. Eskridge, 53 Ga. App. 466, 467 ( 186 S.E. 204). See Holmes v. Langston Woodson, 110 Ga. 861, 869 ( 36 S.E. 251).
As pointed out in Roberts v. Crosby, 43 Ga. App. 267 ( 158 S.E. 444): "Upon the entering of judgment against the principal it shall be lawful to sign up judgment against the surety on the condemnation-money bond at the same time without necessity for bringing suit thereon." See Connally v. Morris, 29 Ga. App. 752 ( 116 S.E. 338). In the more recent case of Sargeant v. Starr, 102 Ga. App. 453, 458 ( 116 S.E.2d 633), where a surety moved to set aside a judgment entered on a dispossessory warrant on the grounds that he had no notice of the same, this court held that the trial judge erred in vacating the judgment upon the motion of the surety. See Taliaferro v. Farkas, 46 Ga. App. 9 (3) ( 166 S.E. 426); Jackson v. Guilmartin Co., 61 Ga. 544; Latham v. Perryman, 77 Ga. 579; Price v. Carlton, 121 Ga. 12, 23 ( 48 S.E. 721, 68 LRA 736).
It is evident that under the construction given Code § 103-209, there is no requirement that the surety be named as a party or be served, or otherwise notified and given an opportunity to be heard. It should also be noted that in his motion to set aside the surety may make no complaint relative to the merits of the judgment which could have been raised by his principal, but must stand or fall by the result of the principal's defense. Under such circumstances, the trial judge properly overruled the motion to set aside the judgment.
Judgment affirmed. Felton, C. J., and Pannell, J., concur.