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2018 Georgia Code 23-3-20 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 23-3-20 Case Law from Google Scholar Amendments to OCGA 23-3-20

TITLE 23 EQUITY

Section 3. Equitable Remedies And Proceedings Generally, 23-3-1 through 23-3-127.

ARTICLE 2 NE EXEAT

23-3-20. Nature of ne exeat; when granted.

The writ of ne exeat shall issue to restrain a person from leaving the jurisdiction of the state. The writ may be granted in the following cases:

  1. In favor of an obligor, promisor, or partner, against his co-obligor, joint promisor, or copartner equally or partly responsible with him for any duty to be performed;
  2. Against persons illegally removing the property of a decedent or of a minor, at the instance of any person interested therein, or of a next friend of the minor;
  3. At the instance of a remainderman or reversioner against anyone attempting to remove the property in which the remainder or reversion exists or may contingently exist;
  4. At the instance of a mortgagee against a person holding the equity of redemption;
  5. At the instance of any person interested legally or equitably in property about to be removed, where no adequate remedy is afforded at law.

(Laws 1814, Cobb's 1851 Digest, p. 526; Code 1863, § 3147; Code 1868, § 3159; Code 1873, § 3226; Code 1882, § 3226; Civil Code 1895, § 4886; Civil Code 1910, § 5459; Code 1933, § 37-1401.)

JUDICIAL DECISIONS

General Consideration

History generally.

- See McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407 (1850), and Lamar v. Lamar, 123 Ga. 827, 51 S.E. 763, 107 Am. St. R. 169, 3 Ann. Cas. 294 (1905).

Compliance with conditions of bond generally.

- A ne exeat bond, as provided for by this section, is one for the personal appearance of the defendant at court; and the conditions of the bond are complied with when the principal is present at court, or within its jurisdiction and subject to its process. August v. August, 65 Ga. App. 883, 16 S.E.2d 784 (1941).

Cited in May v. May, 146 Ga. 521, 91 S.E. 687 (1917); Shaw v. Jordan, 178 Ga. 733, 174 S.E. 350 (1934); Roberts v. Roberts, 190 Ga. 649, 10 S.E.2d 62 (1940); Hutton v. Hutton, 243 Ga. 263, 254 S.E.2d 380 (1979).

Application of Section

This section contemplates action only in advance of a final judgment and there is no reference to any right to the issuance of writ after a final judgment had been obtained. Lomax v. Lomax, 176 Ga. 605, 168 S.E. 863 (1933).

This section is not directed to the enforcement of a judgment against one who has removed the property, etc., but is evidently directed to restrain future removal. Lomax v. Lomax, 176 Ga. 605, 168 S.E. 863 (1933).

Plainly, this section is not to enforce an adjudication in which it has been adjudged that the duty must be performed. Lomax v. Lomax, 176 Ga. 605, 168 S.E. 863 (1933).

The petition, under this section, must state that the defendant is removing or about to remove, either the property or himself, from the state. Reed v. Barber, 110 Ga. 524, 35 S.E. 650 (1900).

Sometimes the writ of ne exeat is issued only to restrain a person from leaving the jurisdiction of the state; sometimes it is issued against a person who is removing, or attempting to remove, property beyond the jurisdiction. August v. August, 65 Ga. App. 883, 16 S.E.2d 784 (1941).

Writ may issue pending application for alimony.

- The writ of ne exeat may be granted in this state at the instance of a wife against her husband pending an application for alimony, and prior to any decree therefor. Lamar v. Lamar, 123 Ga. 827, 51 S.E. 763 (1905); Pepper v. Pepper, 169 Ga. 832, 152 S.E. 103 (1930).

This section does not refer to a mortgagee who has foreclosed, since the right is given only against a person holding the equity of redemption. Lomax v. Lomax, 176 Ga. 605, 168 S.E. 863 (1933).

The writ will issue against an attorney who has collected and refused to pay over money belonging to a client. Conyers v. Gray, 67 Ga. 329 (1881).

Conditions Which Render Writ Cancelled or Illegal

If the condition of a bail bond is more onerous than to compel the appearance of the principal defendant, it is illegal and void. August v. August, 65 Ga. App. 883, 16 S.E.2d 784 (1941).

Where a writ required the taking of a bond, not only for the personal appearance of the defendant, but for the payment of the judgment in the suit for alimony, the writ was void. August v. August, 65 Ga. App. 883, 16 S.E.2d 784 (1941).

If the application for the issuance of the writ of ne exeat is made in connection with an application for alimony, and no removal of property is involved, but merely an intended leaving of the state by the defendant, the judge ought not to require a bond conditioned both that the defendant will not remove beyond the jurisdictional limits of the state, and also that he will pay any judgment that may be found against him in favor of the plaintiff. This would not only require the husband to give security that he would remain in the jurisdiction, but also that he would be solvent and pay the money judgment. August v. August, 65 Ga. App. 883, 16 S.E.2d 784 (1941).

Where the provisions of the bond so vary from those prescribed by this section so as to increase the risk of the securities the bond is not binding on them. August v. August, 65 Ga. App. 883, 16 S.E.2d 784 (1941).

Writ of ne exeat issues to restrain a person from leaving the jurisdiction of the state; and where principal in a ne exeat bond appears and defends suit against him for divorce and alimony, and is within the jurisdiction of the court when the final judgment is rendered against him, subject to processes of the court, such writ becomes functus officio, and upon motion the court should declare the bond cancelled and the sureties therein discharged. May v. May, 146 Ga. 521, 91 S.E. 687 (1917); Lomax v. Lomax, 176 Ga. 605, 168 S.E. 863 (1933).

Pleading and Practice

1. In General

Ne exeat, not injunction, is the proper remedy to restrain a purchasing partner from leaving the state without paying debts assumed by him. Bleyer v. Blum & Co., 70 Ga. 558 (1883); Tucker v. Murphey, 114 Ga. 662, 40 S.E. 836 (1902).

2. Service of Writ

By reason of its very nature, service of a writ of ne exeat is not required. Chlupacek v. Reed, 225 Ga. 512, 169 S.E.2d 782 (1969).

3. Breach of Writ

Summary proceeding upon breach of writ.

- Upon the breach of a ne exeat bond given in an action for alimony, the court may force payment of the bond from the surety in a summary proceeding, on an order to show cause why judgment should not be rendered on the bond. Moore v. Edmondson, 184 Ga. 818, 193 S.E. 780 (1937).

RESEARCH REFERENCES

18A Am. Jur. Pleading and Practice Forms, Ne Exeat, § 1.

C.J.S.

- 30 C.J.S., Equity, § 77. 65 C.J.S., Ne Exeat, § 1 et seq.

ALR.

- Power to issue writ of ne exeat to prevent decree for alimony from becoming ineffective, 8 A.L.R. 327.

Rights and remedies against mortgagee under deed intended as a mortgage, who defeats or impairs equity of redemption by conveying or encumbering property, 46 A.L.R. 1089.

Cases Citing Georgia Code 23-3-20 From Courtlistener.com

Total Results: 2

Tafel v. Lion Antique Cars & Investments, Inc., A/K/A Lion Antique Investments & Consulting Services, Inc.

Court: Supreme Court of Georgia | Date Filed: 2015-06-15

Snippet: exeat. Tafel correctly notes that OCGA § 23-3-20 says that “[t]he writ of ne exeat shall issue

TAFEL v. LION ANTIQUE CARS & INVESTMENTS, INC.; And Vice Versa

Court: Supreme Court of Georgia | Date Filed: 2015-06-15

Citation: 297 Ga. 334, 773 S.E.2d 743, 2015 Ga. LEXIS 443

Snippet: exeat. Tafel correctly notes that OCGA § 23-3-20 says that “[t]he writ of ne exeat shall issue to