60 Ga. App. 702 | Ga. Ct. App. | 1939
Kirby F. C. Maddox filed in the court of ordinary of Butts County a petition alleging that he was interested in the estate of Mrs. Emma B. Maddox, then being administered, being sole distributee thereof and being entitled to said estate by virtual adoption by the deceased as her child; and that W. E. Waldrop, administrator of said estate, was wasting and mismanaging the same. It was prayed that he be cited to answer said charge; and that upon the hearing his letters of administration be revoked; and that second original issue, directed to the sheriff of Spalding County, Georgia, wherein said administrator is domiciled, for personal service upon him. Citation issued, and the administrator was served. Without filing an answer, he entered a demurrer to the petition and a plea to the jurisdiction. The ordinary overruled the demurrer and plea, and after hearing evidence passed an order removing the administrator. The administrator filed an appeal to the superior.court, giving bond, and the ordinary transmitted the appeal. In the superior court the appellee made a motion to dismiss the appeal, on the ground, among others, that no pauper affidavit had been filed in the place of a bond, and no legal bond had been given, in that the purported bond was a nullity, for the reason that it showed that it had been executed by Coleman Nichols as attorney in fact for Great American Indemnity Company as
In the view we take of the case it is necessary to consider only the judgment overruling the motion to dismiss the appeal, in which judgment it must be said the court erred, and all proceedings thereafter were nugatory. The proceeding was a purported appeal from the court of ordinary, wherein the appellee successfully sought, under the Code, § 113-1229, to have revoked the letters of administration of the administrator, W. E. Waldrop. The bond which was filed in support of the appeal may be treated, without respect to any question of supersedeas, as an appeal bond, and its validity or invalidity determines the question whether or not the appeal was good. While the bond was approved by the ordinary, his act did not have the effect of preventing the appellee from asserting its insufficiency or invalidity. In Chapple v. Tucker, 110 Ga. 467 (35 S. E. 643), it was held: “It is not essential to the validity of an appeal that the judge or justice in whose court the case was originally tried should affirmatively approve the appeal bond; for in ease of its insufficiency the appellee may, because thereof, move in the appellate court to dismiss the appeal, and the motion, if well founded, will be granted unless the bond is by amendment made good.” In the opinion it was said: “If the security on the appeal bond is insufficient, the appellee has his remedy under common-law rule 1 (Civil Code, § 5632), which provides that exceptions to the security on appeal may be taken in the superior court, and if such exceptions are sustained good security shall be given or the appeal dismissed. If no security at all is given, the appeal will be dismissed, and no opportunity will be given the appellant in the superior court to give security on a bond which when filed had none;
It is contended by the defendant in error that if the Great American Indemnity Company is not a surety in the bond in question, it is still a good bond, because Coleman Nichols is a surety therein. This view can not be upheld. Whether or not any right exists in favor of the defendant in error against Nichols in a tort action, it is clear that he did not by any apt words sign individually as a surety, but only as a purported attorney in fact for the Great American Indemnity Company, and is not liable on the theory of an individual contract. It is also insisted that by amendment it could have been shown that the Great American Indemnity Company ratified the act of Nichols. Even if the defendant in error had the right as appellant to amend the appeal in the superior court and show ratification, it is not disclosed by the record that any such attempt was made; and, under the authorities hereinbefore cited, this contention is without merit.
Judgment' reversed.