Crew v. Hutcheson

Little, J. Thomas A. Hutcheson, as ordinary of Haralson county, brought an action for the use of Cora Della Crew, “ form-' erly Della Shelnutt,” against S. F. Crew as principal, and M. J. Crew as surety, upon a bond in the sum of $750, which they, in pursuance of a requirement made under the Penal Code, § 388, had executed on the 17th day of August, 1895. This bond was made payable to J. W. Kelley, ordinary of said county, and his successors in office, and its condition was that “the said S. F. Crew shall maintain and support the said female, the said Della, and her child or children, if any, for the period of five years.” The petition alleges that she and S. F. Crew were married on the day last mentioned; and the 4th paragraph thereof reads as follows: “Your petitioner further shows that the said S. F. and Della lived together as man and wife from the time of their marriage, as aforesaid, until the first of August, 1897, when the said Della was compelled to flee from the home of the mother of the said S. F., by reason [of] the imhuman and cruel treatment of the said Della by the said S. F. Crew. The said S. F. Crew refused to support and maintain the said Della as his wife, and compelled her to work and support herself at the home of his mother, the said M. J. Crew. He cursed and abused her, and procured his mother, the said M. J., to do the same; and, as above stated, she was compelled to flee to the home of relatives for protection and support.” The 5th paragraph of the petition contains an averment that the defendants are indebted to the plaintiff, “for the use of the said Cora Della Crew, . . the sum of six hundred dollars for her said support and maintenance for the period of five years from the date of said marriage to the — 513 — present date,” and prays for a judgment in that sum. There is in the petition no allegation of the existence of a child at the time of the bringing of the action. The petition was filed about four years after the marriage, and apparently it was the idea of the pleader that the defendants were, under the bond for $750 covering a period of five years, chargeable at the rate of $150 per annum, thus making $600 for the four years indicated. The 4th and 5th paragraphs of the defendants’ answer are as follows: “ Par. 4th. Plaintiff C. D. Crew and the deft. S. F. Crew lived together as man and wife until the time alleged in this paragraph; all of the balance of the 4th paragraph is every word untrue. ' Par. 5th. The fifth paragraph is untrue. Defts. are not indebted to said usee one cent whatever for support. She was well supported and cared for while she remained at the home of said deft. M. J. Crew, and she left said home of her own accord, without any wrong treatment from these defendants whatever. Defts. believe and charge, from what they have since learned, that said usee was persuaded by her mother and others to leave deft. S. F. Crew and sue him on the bond now sued on. Defendant further says that he at all times treated her as well as he was able, and at no time did he give her any cause to leave him and stay as she has, and at one time after she left he went to Yorkville, in Paulding county, to get her to return home, and she refused to see him at all, her sister stating to deft, that she would not return. Deft, also wrote two letters to said usee to return, and she refused to return. Defts. therefore ask to be discharged with their reasonable costs.” The case was called for trial on the 20th day of July, 1901. After the parties had announced ready, and a jury had been stricken, the defendants filed an amendment to their answer, in which they set up, in substance, the following facts : On the 19th day of July, 1901, the plaintiff’s usee, upon a suit for divorce and permanent alimony, which she had previously instituted against S. F. Crew, obtained a second verdict granting her a total divorce. This verdict also embraced a finding in favor of the plaintiff in that suit for “ the sum of $6.00 per month as permanent alimony to be paid as follows: $6.00 on the 1st of each month during her single life, beginning 1st day of August, 1901.” A judgment in accord with this verdict was duly entered July 20, 1901. After setting forth these facts, it was in the amendment alleged that inasmuch as the — 514 — suit for permanent alimony and the action on the bond in this case were “ for one and the same thing, both being for support and maintenance of the said tísee Cora D.,” and she had “ elected to proceed with said application for permanent alimony instead of insisting on her rights, if any she had, under the bond sued on in this case,” the right of the plaintiff to recover therein had become barred, and accordingly the present action should abate, for otherwise there would be two judgments in favor of the plaintiff’s usee upon one and the same cause of action. It appears that this amendment was not only offered, but actually filed in the office of the clerk; and the court, on motion of plaintiff’s counsel, passed an order striking the same. The case then proceeded to trial. The plaintiff putin evidence the bond sued on, but offered no testimony. There was an admission by the defendants that after the separation the husband contributed nothing to the wife’s support. The court, of its own motion, refused to allow the defendants to introduce any evidence to sustain their original answer, and directed a verdict for the plaintiff for $600. To all of the rulings indicated above the defendants excepted. 1. As will have been observed, the marriage took place on the 17th day of August, 1895. The period of five years covered by the bond therefore expired on the 17th day of August, 1900. The judgment requiring S. F. Crew to pay permanent alimony to Mrs. Cora D. Crew at the rate of six dollars per month expressly postponed the beginning of the monthly payments until the 1st day of August, 1901. Accordingly, it is obvious that the period during which it was contemplated that the wife should be supported by these payments embraced no part of the period as to which the bond was operative. While it is true that the suit for permanent alimony was begun before the five years expired, it is to be noted that the defendants to the action on the bond did not set up as a defense thereto the pendency of the proceeding for permanent alimony. Had they done this, an altogether different question would have been presented. As the present case stood when the amendment to the defendants’ answer was actually filed, not only had a judgment already been rendered for permanent alimony, but the same on its face showed that it gave to Mrs. Cora D. Crew no recovery whatever for that period of time during which the bond entitled her to demand a support from S. F. Crew. It is therefore — 515 — clear, we all think, that the amendment set up no good defense, and that the court did right in striking it on motion of the plaintiff’s counsel. 2. In the case of Duke v. Brown, 113 6a. 310, this, court held: “ The undertaking of the principal obligor and the securities in such a bond is not at all dependent upon the conduct of the female after the marriage. He must maintain and support her and her offspring for the period fixed in the bond, without reference to her ■conduct.” Three of us still adhere to the view then entertained as to this point. It appears from the record now before us that the defendants in their answer set up as a defense alleged misconduct on the part of the wife. This defense was not challenged either by demurrer or by a motion to strike the same, but at the trial the •court, of its own motion, declined to allow the defendants to introduce any evidence in support thereof. In pursuing this course his honor below was evidently endeavoring to follow the ruling made’ by this court in the case just cited, and a majority of us think that this was eminently proper. In support of this view it is only necessary to refer to what is said with respect to this question ■of practice in the opinion filed in the present case by Mr. Justice •Cobb. 3. It only remains for the writer to briefly discuss the question •dealt with in the third headnote. Did the facts appearing warrant the direction of a verdict for $600, the ful-1 amount for which the plaintiff sued ? This action of the court was doubtless predicated upon the ruling in Duke v. Brown, that: “ In such a suit, if it be shown that there has been a breach of the bond, the recovery shall be for the full amount stated in the bond, and the ‘ judgment shall remain open and be subject to be appropriated’ by the ordinary * from time to time as the situation and exigencies ’ of the wife and her offspring may require.” Of course, if the court could properly •direct a verdict for $750, the amountnamed in a bond of this character, when the petition prayed for a recovery of that amount, it was not, as to the defendants in the present case, harmful error to direct a verdict for the smaller amount of $600, which was all the plaintiff claimed. A majority of us are, however, now satisfied that the ruling last above quoted was not well considered, and should not be followed. The conclusion that in an action of the present nature any breach of the bond would authorize a recovery — 516 — of the full amount therein named was reached by analogizing the-provisions of sections 388 and 389 of the Penal Code with those embraced in section 1254 of that Code, which deals with a bond given in a bastardy case, and in terms authorizes the rendition of a judgment for “ the full amount of the bond, which judgment shall remain open, and be subject to be appropriated by the courts, from time to time, as the situation and exigencies of the bastard child may require.” After again carefully and anxiously going over the whole matter, three of us are now convinced that we erred iu taking the view above pointed out. The difficulty is that section 389' of the Penal Code does not in terms authorize a recovery of the full amount named in the bond, upon a mere breach of the same. This-section simply declares that “ upon the failure of the defendant to comply with its terms, suit may be brought thereon.” The almost-universal rule is that in actions upon penal bonds the recovery can in no case exceed the actual amount of the damages proved. An exception is made, as has been seen, in the case of a bastardy bond; but there is no such exception in the law providing for the giving of the bond required by section 388 of the Penal Code. To be perfectly frank and candid, therefore, it now seems to us-that the ruling on this point in the case of Duke v. Brown was-more in the nature of legislation than of judicial construction. We therefore feel that it would not be proper to adhere to the same. The truth is, we undertook by construction to cure an omission in legislation. It would, we think, have been entirely proper for the General Assembly to declare that in an action upon a bond of the sort now before us, there might, under conditions so authorizing, be a recovery of the whole amount named in the bond even for a slight breach thereof, with a provision, as in the case of a bastardy bond, that the courts might, by appropriate orders passed from time to time, administer the fund raised by the judgment for the benefit of the beneficiary or beneficiaries of the bond. Such legislation should, however, be so framed as not to permit a full recovery when there was palpably no necessity for it. For instance, if a husband has fully and adequately supported his wife for four years and eleven months, it' would hardly do to allow the ordinary to recover $750 for the support due but not furnished for the remaining month of the five years. Perhaps the best legislation which could be had on this line would be to allow several distinct — 517 — ■recoveries on the bond, from time to time, as the exigencies of the case might require. Impressed by the idea that the legislation should have gone further than it did, the court was led into the error which -we are now undertaking to correct. Another reason which influenced us was, that, in the absence of any .such provision as that last suggested, the wife, in a case like the one before us, would, by bringing her suit when the first breach of the bond occurred, be ■compelled to accept as final a recovery equal only to the amount ■ required for her support during the period or periods when the same had not been furnished up to the time of the bringing of the action, which would, of course, in many cases, be less than the full amount named in the bond; or else wait until the expiration of the five years, and then in a single action recover the full amount of the bond or so much thereof as it then appeared she was entitled to receive. Neither of these alternatives seemed just or adequate to the situation ; and this being apparent, we were, under the influence of a .strong and proper desire to afford adequate protection to all women who had thus been mistreated, misled into an attempt to accomplish that for which the lawmaking power should have provided. We still adhere to the spirit 'of the decision made, and are firmly •convinced that the law on this subject should be amended; but, for •the reasons given above, we are now constrained to hold that the ruling announced was not authorized by the law as written. There being in the present case no evidence warranting a finding for the plaintiff in any particular sum, the trial judge was n.ot, in the opinion of a majority of us, authorized to fix the amount of the recovery. Judgment reversed. All the Justices concurring, except Lewis, J., absent, and Fish and Cobb, JJ., dissenting.