American Druggists' Insurance v. Harris

Beasley, Judge,

concurring specially.

I concur in the judgment only, as I fail to comprehend the relevancy, to the issue, of the two cases cited by the majority. The first case merely constitutes part of the history of this surety’s efforts to be relieved of payment, and the second case deals with the substantially different predecessor of the applicable statute.

The trial court in its order states two bases for denial of the application for remission of bond forfeiture. One was as recited by the majority. The other was: “The Order entered by the Court and filed on April 23, 1984, denying [appellant’s] Motion for New Trial and Motion to Set Aside the Judgment entered March 23,1984, which was not timely appealed, is the law of the case.” The untimeliness mentioned refers to part of the Georgia Supreme Court’s holding in American Druggists’ Ins. Co. v. Harris, 253 Ga. 535 (322 SE2d 496) (1984). Appellant did not address this ground in his enumeration of error and apparently is of the opinion that despite the earlier order which stands unreversed, the trial court still had discretion to grant relief.

It appears that appellant reads the court’s second ground as meaning that the court could not consider the application because the judgment had been entered and satisfied by payment of funds into court; that is, “no standing” is interpreted as “no claim” at this late date in the statutory process of bond forfeiture. In trying to fit appellant’s argument to the order appealed from, I would give the appellant the benefit of this understanding.

The substantive difficulty with appellant’s position is that the law does not allow the remission it seeks, under the factual circumstances here, and thus the trial court is correct. OCGA § 17-6-31 and Article 3 of the chapter on bonds and recognizances apply. They were amended in 1982, effective January 1,1983, so as to more strictly govern forfeiture of bail bonds. Ga. L. 1982, p. 1224. The opportunities for escaping some or all monetary liability were drastically reduced by deliberate deletion under the pen of the General Assembly. As stated in the amendatory act, its purpose is “to provide new and different procedures for the forfeiture of appearance bonds.” Id. No provision is made there or in later amendments for “remitting” the forfeiture or otherwise allowing avoidance of the judgment once it is duly entered, on the ground that the surety has surrendered the principal or has aided in his capture. In the trial court’s words, the surety has “no *483standing” to assert such a ground; using the appellant’s words, the court has “no discretion” to entertain such a ground.

Decided January 8, 1986. Christopher C. Howard, Jr., J. Larry Palmer, for appellant. J. Brown Moseley, District Attorney, for appellee.

I am authorized to state that Judge Pope joins in this special concurrence.