Barry Finance Company v. Lanier

This case originated as a result of a trover action, in the Civil Court of Fulton County, brought by Barry Finance Company, the plaintiff in error here, against John Harris. J. Sidney Lanier, the defendant in error, executed a forthcoming bond on behalf of Harris, the defendant in the bail-trover action. The bail-trover case came on regularly for trial before a Judge of the Civil Court of Fulton County. After the plaintiff in the bail-trover action had presented all of its evidence and rested its case, the defendant Harris moved for a nonsuit, which the court granted and passed the following order: ""It is ordered that said motion be sustained and said case be dismissed and costs assessed against the plaintiff. It is further ordered that the defendant and the surety on his bond are hereby relieved from liability thereunder; and said bond is ordered canceled."" This order was passed on March 26, 1947. The plaintiff in the trover action made a motion to reinstate the case. Thereafter, on April 17, 1947, the court passed the following order: ""After argument of the above and foregoing motion to reinstate, having been heard, it is hereby ordered and adJudged that the case be reinstated. It is further ordered and adJudged that the bond posted by the defendant in the original suit be in effect revived for all future hearings of this suit."" The surety Lanier, the defendant here, was served with no notice of the motion to reinstate the case. Subsequently, the case went to trial and judgment was obtained by the plaintiff in error here against Harris, the defendant in the bail-trover action, and the defendant in error here, Lanier, as surety. Thereafter, the fi. fa. was levied on property of the defendant Lanier to satisfy the judgment. This was the first notice that the defendant Lanier had of any reinstatement, trial, or judgment. Immediately after this levy he made a motion to set aside the judgment and fi. fa. levied against him as surety, on the grounds that he was not a party to the case to reinstate the judgment on the nonsuit, that he had no notice of the reinstatement of the case; no notice of trial, no notice of judgment, and no notice of fi. fa. or levy. The same trial Judge, on this motion of Lanier, passed the following order: ""Appearing to the court that J. Sidney Lanier, surety on the bond of John Harris on which a judgment was rendered against the defendant and his surety in the above styled case, that at the original trial of the case a non-suit was granted and the defendant and his surety discharged; subsequently, and in the same term of court, a motion was made by plaintiff to reinstate the case, and the petition was served upon counsel for the defendant, John Harris, it appearing that there was no petition to reinstate the bond and to hold the surety liable, but the order granting the reinstatement recites that the bond is reinstated and his surety to become liable in the event of a judgment in favor of the plaintiff; there was no notice to the surety of the petition to reinstate; after the case was tried on the second hearing, a judgment was rendered in favor of the plaintiff and against the defendant and his surety, and a fi. fa. was issued in said matter against defendant and his surety, J. Sidney Lanier, and levy was made on the property of J. Sidney Lanier. Upon motion of J. Sidney Lanier to cancel said fi. fa. insofar as the surety, J. Sidney Lanier, is concerned, null and void and of no effect. ""It is, therefore, the order of the court that fi. fa. No. 133 685, issued in favor of Barry Finance Company against John Harris, defendant, and J. Sidney Lanier, surety, be vacated, set aside, declared null and void and of no effect insofar as J. Sidney Lanier, surety, is concerned, and said judgment, fi. fa., and levy are declared null and void.""