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BANKE, Judge.
Action on contract. Fulton State Court. Before Judge Langham.
Alpha-Atlanta Construction, Inc., was the prime contractor for the construction of a waste water treatment facility in Valdosta, Georgia. The appellant, Hanover Insurance Company, executed a payment bond in the amount of the prime contract. This bond obligated Hanover, as surety, to pay all obligations enforceable against Alpha-Atlanta arising out of the construction contract. The Scruggs Company, the appellee, subcontracted to perform paving work at the facility. Scruggs commenced this action against Alpha-Atlanta and its surety, Hanover, seeking $39,125.50 in payment for the completed work. Both defendants moved to stay the action, contending that the subject matter of the complaint was subject to arbitration under the terms of the subcontract. The trial court granted the motion, and the parties stipulated that the case be removed from the court's active trial calendar and that it be referred to the American Arbitration Association "for determination." Alpha-Atlanta's president testified before the arbitrator that the Scruggs Company satisfactorily completed its work under the subcontract and that the sum of $37,321.00 is due and owing to Scruggs. The arbitrator entered an award in favor of Scruggs for that amount plus interest. Scruggs then moved for summary judgment against Alpha-Atlanta and Hanover. This appeal by Hanover is from the grant of that motion. Alpha-Atlanta does not appeal. Held:
Sargeant v. Starr, 102 Ga. App. 453, 459 (116 SE2d 633) (1960). "The liability of sureties is absolutely fixed by the judgment against their principal, and they must stand or fall by the result of his defense, such being the express undertaking of the bond." Ford v. Eskridge, 53 Ga. App. 466, 467 (186 SE 204) (1936).
It does not appear that there was any valid reason for the appellant to anticipate reversal of the superior court's judgment, and, consequently, we must conclude that the appeal to this court was for the purpose of delay only. Accordingly, the appellee's request for award of damages in the amount of 10 percent of judgment is granted. See Code 6-1801.
Wade H. Coleman, C. Wilbur Warner, Jr., for appellee.
Luther P. Cochrane, Michael E. Utley, for appellant.
DECIDED JUNE 18, 1982.
Thursday May 21 21:20 EDT

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