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Call Now: 904-383-7448The defendant may relieve himself, his property, or the specific property from the restraint imposed by giving bond in double the value of plaintiff's claim, with good security, to the officer serving the process, for the forthcoming of each or either, according to the tenor of the writ, to answer to complainant's claim or abide by the order and decree of the court. The judge granting the writ may, in his discretion, require a larger bond. An officer receiving insufficient security shall be held surety himself, and the sureties on his bond may be held responsible therefor.
(Laws 1830, Cobb's 1851 Digest, p. 527; Code 1863, § 3149; Code 1868, § 3161; Code 1873, § 3228; Code 1882, § 3228; Civil Code 1895, § 4888; Civil Code 1910, § 5461; Code 1933, § 37-1403.)
The question of whether a writ of ne exeat can issue ex parte cannot be raised by a demurrer (now motion to dismiss) to a petition in an action on the bond. Goldstein v. Jackson, 97 Ga. App. 28, 101 S.E.2d 869 (1958).
The writ of ne exeat must be issued prior to a final judgment. The writ is not available to enforce a judgment which has already been obtained. The rule of the common law, whereby the writ of ne exeat issued only after judgment, is not of force in this state, since the common law as to this point has been superseded by this section. Matthews v. Matthews, 177 Ga. 412, 170 S.E. 250 (1933).
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).
- The requirements of this section as to what condition or conditions must be given in a ne exeat bond are dependent upon the requirements of the court's order, upon which the writ is issued. Goldstein v. Jackson, 97 Ga. App. 28, 101 S.E.2d 869 (1958).
Where the court's order only requires an appearance to respond, the principal is required only to give a bond to meet that requirement. The inclusion of more conditions in the bond than required in the order does not render the bond void, and the principal and surety will be bound only by the condition contained in the bond which was required by the court's order. Goldstein v. Jackson, 97 Ga. App. 28, 101 S.E.2d 869 (1958).
A statutory bond must follow closely the statute, and if the provisions of the bond so vary from those prescribed by the statute 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).
Where 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. McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407 (1850); Pounds v. Pounds, 136 Ga. 196, 71 S.E. 137 (1911); August v. August, 65 Ga. App. 883, 16 S.E.2d 784 (1941).
Cited in Bleyer v. Blum & Co., 70 Ga. 558 (1883); Pepper v. Pepper, 169 Ga. 832, 152 S.E. 103 (1930); Jordan v. Sexton, 42 Ga. App. 218, 155 S.E. 356 (1930); Lomax v. Lomax, 176 Ga. 605, 168 S.E. 863 (1933); Shaw v. Jordan, 178 Ga. 733, 174 S.E. 350 (1934); Hornsby v. Rodriguez, 116 Ga. App. 234, 156 S.E.2d 830 (1967).
- 6 Am. Jur. 2d, Attachment and Garnishment, §§ 523-526.
- 30 C.J.S., Equity, § 77. 65 C.J.S., Ne Exeat, § 13.
Total Results: 1
Court: Supreme Court of Georgia | Date Filed: 1920-02-28
Citation: 150 Ga. 55, 102 S.E. 435, 1920 Ga. LEXIS 24
Snippet: 28 L. R. A. 727, 52 Am. St. R. 407) ; 34 Cyc. 23 (3); 23 Am. & Eng. Enc. Law, 1016. Judgment affirmed