Luke v. Luke

Stephens, J.

1. Where a trial court has not been adjourned five days before the commencement of the next regular term, as provided in the Civil Code (1910), § 4877, it is nevertheless open and may render judgments as in term time before its actual adjournment, although the judgments rendered are within five days of the commencement of the next regular term of the court. Horkan v. Beasley, 11 Ga. App. 273 ( 75 S. E. 341 ); King v. Sears, 91 Ga. 577 ( 18 S. E. 830 ).

2. A judgment in an alimony suit against a surety upon a supersedeas bond given by the defendant for the “eventual condemnation money” may, when the remittitur from the appellate court is received, affirming the judgment, be rendered for the full amount of all the accrued unpaid installments due at the time of the entering of the judgment upon the supersedeas bond, which necessarily represents the eventual condemnation money. Civil Code (1910), §6165; Lockwood v. Saffold, 1 Ga. 72 ; Holleman v. Holleman, 69 Ga. 676 ; Osborne v. Osborne, 146 Ga. 344 ( 91 S. E. 61 ). This case is distinguishable from the cases of Corbin v. McCrary, 23 Ga. App. 780 ( 99 S. E. 472 ); Kendrick v. Battle, 24 Ga. App. 676 ( 101 S. E. 812 ); McCrary v. Corbin, 25 Ga. App. 262 ( 103 S. E. 194 ).

3. Attorney’s fees awarded the plaintiff are recoverable in her name. Van Dyke v. Van Dyke, 125 Ga. 491 ( 54 S. E. 537 ).

4. Such a judgment hears interest. Civil Code (1910), §3432.

5. The judgment rendered against the surety upon the supersedeas bond was not excessive in amount, and was not otherwise illegal:

6. The affidavit of illegality set out no defense, and was properly stricken on demurrer.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.