§ 2108. How prosecuted

Bonds given to the Probate Division of the Superior Court shall be prosecuted in the Superior Court of the county in which they were given for the benefit of those injured by the breach of their conditions, in the following manner:

(1) A person claiming to be injured by a breach of the condition of a bond may file a motion for permission to prosecute the bond and shall give a bond to the adverse party to the satisfaction of the Probate Division of the Superior Court, on the condition that he or she will prosecute it to effect and pay the costs awarded if recovery is not obtained.

(2) The Probate Division of the Superior Court shall grant permission to prosecute the bond, and when the fees have been paid, shall furnish to the applicant a certified copy of the bond, with a certificate that leave to prosecute it has been granted, and the name and residence of the applicant.

(3) The applicant shall cause his or her name to be indorsed as prosecutor upon the writ and shall file the copy of the bond and the certificate furnished by the Probate Division of the Superior Court, with the writ, in the Superior Court to which and when it is returnable; and the applicant shall be deemed to be the prosecutor of the bond.

(4) The complaint on the bond shall definitely assign and set forth the breaches of the conditions on which the prosecutor relies.

(5) The Superior Court to which the writ is returned shall render judgment, as on default, for the penalty of the bond in favor of the Probate Division of the Superior Court and against the defendants, or those defendants who do not comply with the terms provided in subdivision (6) of this section, but costs shall not be taxed on the judgment.

(6) The defendants who wish to resist the judgment shall, on or before 21 days after service of the writ, plead a general denial, and, with their plea, file their affidavit, stating that they believe or are advised that they did not execute or deliver the bond; or they shall demur to the complaint.

(7) On trial, if the issue on the plea or demurrer is found in favor of the plaintiff, judgment shall be rendered for the penalty of the bond, as provided in subdivision (5) of this section, and the prosecutor shall recover against the defendants entering the plea or demurrer the costs of the action, and have execution for them in his or her own name.

(8) When judgment is rendered for the penalty of the bond against all the defendants, the judgment shall remain in force as security for other breaches of the conditions of the bond, which may be afterwards assigned and proved.

(9) The action shall thereafter proceed and be prosecuted in the name of the prosecutor, on the breaches assigned. Upon prevailing, the prosecutor shall have judgment in his or her own name for damages and costs, but if judgment is rendered for the defendants on an issue joined in the action or on nonsuit, they shall recover double costs against the prosecutor. (Amended 1985, No. 144 (Adj. Sess.), § 95; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.)