American Surety Co. of New York v. Macon Savings Bank

Hill, J. The Civil Code (1910), § 3054, provides: “Suit may be instituted against the guardian and his sureties on his bond in the same action at the instance of his ward, or a new guardian, or any other person interested, without first suing the guardian; and if the guardian is beyond the jurisdiction of the court, or places himself in the position of a debtor liable to attachment, or is dead, and his estate unrepresented, suit may be commenced against the sureties alone; provided, that the fi. fa. issued upon a judgment obtained against the guardian and his sureties shall not be levied upon the property of the sureties until a return of nulla bona as to the guardian, unless the property of the sureties is being removed from the county. If the failure to sue the guardian arose from his voluntary act, the judgment against the [146] sureties shall be conclusive in any suit against him.” Section 3974 provides: “The administrator and his sureties shall be held and deemed joint and several obligors, and may be sued as such in the same action; and if the administrator is beyond the jurisdiction of this State, or is dead, and his estate unrepresented, or is in such position that an attachment may be- issued against him, the sureties, or any one or,more of them, may be sued. No prior judgment, establishing the liability of the administrator or a devastavit by him, shall be necessary before suit against the sureties on the bond.” These sections were derived from the act of 1820. Cobb’s Digest, 320; Acts 1851-2, p. 235; Acts 1855-6, p. 145; Cobb’s Digest, 484. These acts of, the legislature and sections of.the Code have been the basis of much learned discussion by former Judges of this court. As far back as the case of Justices v. Sloan, 7 Ga. 38, Judge Nisbet delivered a very able and well reasoned opinion; and see also, to the same effect, Ray v. Justices, 6 Ga. 308; Cameron v. Justices, 1 Ga. 36 (2) (44 Am. D. 636). In Bailey v. McAlpin, 122 Ga. 616 (50 S. E. 388), Judge Cobb, speaking for the court, considered and reviewed all of the cases on this subject previously decided by this court, and also the acts of the legislature above mentioned, and reached the conclusion that the effect of the section of the Code of 1863, § 2470, now § 3974, which declares that cno prior judgment, establishing the liability of the administrator or a devastavit by him, shall be necessary before suit against-the sureties on the bond,’ was to permit a suit to be brought on the bond in the first instance against the administrator and his sureties. The decision of Judge Nisbet held in effect, that, before a surety on an administrator’s bond could be sued, there must be a preliminary suit against the administrator fixing the liability of such administrator. That decision, and others like it, were rendered prior to the Code of 1863. In that Code the acts of 1820 and 1851-2, with reference to suits against sureties on administrators’ and guardians’ bonds, were separated and put into two sections of the Code, and certain words were added which authorized suit against the guardian and his sureties on his bond in the same action at the instance of his ward, “or a new guardian, or any other person interested, without first suing the guardian.” If, therefore, the reasoning of [147] Judge Cobb, in the ease of Bailey v. McAlpin, supra, is sound, and we think it is, with reference to suits against administrators and the sureties on their bonds, the same reasoning would apply to the case of suits against guardians and the sureties on their bonds, at the instance of the ward, or a new guardian, or any other person interested, without first suing the guardian. It would serve no good purpose to review the cases or repeat the language used by Judge Cobb in reaching the conclusion above stated. His opinion is easily accessible, and his logic to our mind is unanswerable. It is true that he was dealing with what is now Civil Code § 3974, which refers exclusively to suits against administrators and the sureties on their bond; and it was held in that case that a prior suit against the administrator was unnecessary. Civil Code § 3054 deals exclusively with suits on guardians" bonds; and we think it is manifest, by a comparison of the two sections, that while the language used in each is somewhat different, the purpose of the codifiers was the same. The language of § 3974 is that “no prior judgment, establishing the liability of the administrator or a devastavit by him, shall be necessary before suit against the sureties on the bond.” The language in § 3054 is to the effect that suit can be brought by either class of persons named in the section, against the guardian and the sureties on his bond jointly, “without first suing the guardian.” § 3054 also provides that suit may be brought against the guardian and his sureties on his bond “in the same action.” These words would be unnecessary if the purpose were simply to authorize suit against the principal and'his sureties on his bond after liability had been established against the guardian. And in § 3974 these words occur : “the administrator and his sureties shall be held and deemed joint and several obligors, and may be sued as such in the same action;” and there is an absence of words indicating an intention of first suing the administrator. The two sections of the Code dealt with are the same as the two corresponding sections of the first Code, and § 3054, authorizing suit on guardians’ bonds without a preliminary suit, is not a codification of any prior legislative act, but was inserted by the codifiers and made the law by subsequent adoption of the codes by the legislature. We are of the opinion that the first two questions propounded by the Court of Appeals should be answered in the negative. The [148] other questions propounded by the Court of Appeals are answered in headnotes 3 and 4, and require no elaboration. All the Justices concur.