48 Ga. App. 7 | Ga. Ct. App. | 1933
Lead Opinion
1. “In a civil cause the party shall, on or before the filing of the bill of exceptions, pay all costs, and . . give bond with good security, payable to the opposite party, and conditioned for the payment of the eventual condemnation money and all subsequent costs, which bond shall be attested and approved by the said clerk. If such bond is filed, and all costs there accrued paid, subsequently to the filing of the bill of exceptions, provided the same is done'within ten days after such bill of exceptions is filed, further proceedings under the judgment shall be stayed until a decision is had upon the.bill of exceptions.” Civil Code (1910), § 6165; Ga. L. 1917, p. 63. These provisions are mandatory; and before a party can obtain a supersedeas of the order or judgment complained of in the bill of exceptions, all accrued costs must-be paid and such bond given, or a proper pauper affidavit filed. Harris v. Barfield Music House, 147 Ga. 321 (93 S. E. 876); Harris v. Atlanta Northern Railway Co., 144 Ga. 701 (87 S. E. 1041); Johnson v. Pinkston, 12 Ga. App. 585 (77 S. E. 1075).
2. There being no proper supersedeas of the judgment dismissing the- defendant’s cross-action, the pendency of the writ of error in the Supreme Court was no obstacle to proceeding -in the trial court with all interlocutory or ancillary matters in all respects as if no writ of error liad been sued out. Ryan v. Kingshery, 88 Ga. 361 (14 S. E. 596); Spooner v. Coachman, 18 Ga. App. 705 (90 S. E. 373); Perkins v. Rowland, 69 Ga. 661; Truluck, v. Peeples, 1 Ga. 1; Parker-Hensel Engineering Co. v.
Schuler, 133 Ga. 696 (66 S. E. 800). It follows that the trial court properly rendered judgment in favor of the plaintiff’s assignee.
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
The plaintiff in error contends that he sufficiently complied with the law, and was entitled to a supersedeas of the judgment dismissing his cross-action on filing his bill of exceptions and giving the statutory bond; that it was not necessary that he pay the accrued costs; and that the provisions of section 6165 are not mandatory upon one seeking a supersedeas. We can not agree with this position. “ Section 6165 of the Civil Code, providing how a supersedeas may be obtained, is mandatory in declaring that on or before filing a bill of exceptions the party shall pay all costs, and give bond with good security, . * conditioned for the payment of the condemnation money and all subsequent costs.” Harris v. Barfield Music House, supra; Wheeler v. Wheeler, 139 Ga. 608 (77 S. E. 817). It is true that, there being no legal supersedeas, “the pendency of the writ of error in the Supreme Court was no obstacle to proceeding in the trial court with all interlocutory or ancillary matters in all respects as if no writ of error had been sued out.” However, “What odds does it make that a supersedeas is not obtained? Whether there shall be a supersedeas or not is optional with the party excepting. If he does not do what is necessary to make his bill of exceptions operate as a supersedeas, the other party may go on with the case or not, at his pleasure. If he chooses to go on, he must do so at his peril. Taking the chances of an affirmance, he must run the risk of a reversal; and as by an affirmance he would gain all the ground he passes over, so by a reversal he must lose it all.” Jordan v. Jordan, 16 Ga. 446, 452; Perkins v. Rowland, supra; Ryan v. Kingsbery, supra; Montgomery v. King, 125 Ga. 388, 391 (54 S. E. 135); Cumberland Fertilizer Co. v. Williams, 146 Ga. 27,
Rehearing denied.