114 Ga. 349 | Ga. | 1901
Proceedings were duly instituted in the court of ordinary of Butts county by Ball, propounder, to probate the will of John L. Mapp, deceased, in solemn form. A caveat was filed by certain heirs of the deceased, and the issue arising thereon was determined in favor of the propounder by the ordinary. An appeal to the superior court of that county was attempted to be entered
Section 4465 of the Civil Code, under which these affidavits in forma pauperis were drawn, provides that in order for such affidavits to be effective they must recite the fact that, owing to his poverty, the appellant “is unable to pay the costs and give the security required by law in cases of appeal.” By the terms of section 5124 of the same Code the appeal affidavit in forma pauperis is amendable, where material words have been omitted by accident or mistake. However, no question arises in this case on the right of appellants to amend, as they insist that the affidavits as made are legally sufficient. Until December 21,1897, the law as to appeals entered in forma pauperis unquestionably required the affiant to depose that he was unable to pay the costs and give the bond and security. On the last-named date, however, an act of the General Assembly was approved by the Governor, under the
It is, however, claimed by the appellants that the judgment of the court below, refusing to dismiss the appeals, was correct, because of the proviso in the act of 1900; this proviso being, that the terms of this act shall not apply to cases pending in the court of ordinary or on appeal from the court of ordinary in the superior court. It is reasoned, inasmuch as the act of 1900 is amendatory of the act of 1897, which changed the required allegation of inability to pay the cost and give security from the conjunctive to the disjunctive form, that the change provided is not applicable to the class of cases embraced in the proviso of the act of 1900, which were pending at the date of its passage, and that it follows that at the time the judgment refusing to dismiss the appeal was rendered, February, 1901, the terms of the act of 1-897, requiring the disjunctive form, were not applicable to this case. In other words, notwithstanding the fact that at the time the appeals were entered the law required affidavits of this nature in such a case to be in the disjunctive and not in the conjunctive form, yet by a subsequent enactment this provision of the law was rendered inapplicable to this case. We are fully prepared to concede that where the terms of an enactment prescribe a particular manner in which an act may be lawfully done, and subsequently, by an amendatory act, the provisions of the law so declared are made inapplicable to certain persons, or a certain class of cases, the effect of the act as amended is, from the date of the amending act, to restrict the application of the rules prescribed in the original enactment or law to the persons or cases not excepted by the amendatory act. With this concession we come to examine the act of 1900 for the purpose of applying its provisions, and we find that the only enactment therein made was to restore to section 4465 of the code the provision that there may be an appeal in forma pauperis from a judg
Judgment reversed.