Booten v. Bank of the Empire State

67 Ga. 358 | Ga. | 1881

Jackson, Chief Justice.

1. We think upon the case made in this record that the court erred in dismissing the appeal. The motion to dismiss is grounded on two positions: first, that no authority was given to the agent to enter the appeal; and secondly, that the surety had failed and become bankrupt and in-, solvent.

There seems to be no doubt that the appeal bond was made in due time and executed by Sheibley, as agent for the principal debtor, and that he also signed it as surety. He swears that he had written authority from his principal, and was managing the case in his absence for him. That written authority was lost, and this will account for its not being filed. In view of the liberal policy of the law as uniformly ruled by this court on the subject of appeals, and of the subsequent ratification by the principal of the act of the agent, we think that the better ruling is to let the appeal stand. &nd to try the case on its merits, so far as this point is concerned. Irregularities in matters of appeal are curable. 63 Ga., 496, 607.

2. The other point was perhaps good ground to dismiss .the appeal without amendment, though Judge Benning doubted that; but the appellant asked leave to amend by having time to give new and good security. The former surety failed after the appeal was entered, and the application for a few days to supply his place, in view of all the facts, should have been granted. 18 Ga., 371; 19 lb. 573.

. It is to be noted that when this case was here before, the general doctrine in respect to the liberal policy of our law touching appeals was approved, and the case was sent back because the ex parte; affidavit of Sheibley, the agent, was heard on the motion, this court then ruling that the other side ought to have had opportunity to cross-examine him; but this court then expressly ruled that it did not direct that the appeal be dismissed. On the contrary, the intimation is strong that if his testimony showed that the appeal was in time and that he had the written authority in time to enter the appeal, it ought not to be dismissed.

See cited by plaintiff in error. 1 Kelly, 278-9 ; 2 Ib., 236; 6 Ga., 94,99! 10 Ib., 414; 11 Ib., 39 ; 15, Ib., 110; 18 Ib., 471 ; 20 Ib., 69, 773; 22 Ib., 621; 30 Ib., 328; 31 Ib., 357, 358, 359; 38 Ib., 222; 59 Ib., 103, 598.

Judgment reversed.