National Furniture Co. v. Edwards

105 Ga. 240 | Ga. | 1898

Lewis, J.

We know of no law that requires the approval of •an appeal bond by the magistrate. If the security given by the. .-appellant is insufficient, the appellee has his remedy under section 5123 of the Civil Code; and that remedy is not the dismissal of the appeal without allowing the appellant an opportu- • nity to offer an amendment and give new security. Even -if it •were the duty of the magistrate to make upon the appeal bond . a formal entry of approval, we do not think the failure to per- • form such a ministerial act should work any injury to the appel- ' lant if he has complied with all the law required of him in pay•ing costs and filing his bond within the time provided by the :Btatute. Section 5125 of the Civil Code declares: “The mis-take or misprision of a clerk or other ministerial officer shall in, no case work to the injury of a party, where by amendment jus-tice may be promoted.” In the case of Pearce v. Renfroe, 68 Ga. 194, it was held to be no cause for the dismissal of an appeal that the magistrate did not file the papers in the office of the ■ clerk of the superior court within the time required by law; nor ■ that he did not send up the judgment rendered by him; nor that ‘ he made no proper certificate that the appellant had’ within the ■proper time paid the costs and given bond. “When an appellant has done his duty,” says the court, “the mistake of the magistrate may be corrected.” See also Nisbet v. Lawson, 1 Kelly, 275; Thomas v. R. R. Co., 38 Ga. 222. An appeal is a de novo investigation. After the case has been properly appealed to the superior court from an inferior judicatory, procedure on the ■trial of the appóal should be just as if the case had been originally brought in the superior court, and was being heard for the first time. The proper practice in a claim case, where the •claimant fails to put in an appearance, would be either to dis.miss the claim, or for the plaintiff to make out his case before he would be entitled to a verdict or judgment subjecting the property. He certainly could not, on account of the failure of the claimant to appear, take judgment by default. The effect of dismissing an appeal is to affirm the judgment of the court be-' low. Plaintiff might in this case have moved a dismissal of the claim, but he could not, in this de novo investigation, obtain such a judgment upon mere motion as would have the effect of finally subjecting the property in dispute to his execution. The principle ruled in Singer Mfg. Co. v. Walker, 77 Ga. 649, wethiuk controls this case. There it was decided that where an appeal has been entered by a defendant, it is a de novo investigation, and should not be dismissed because of the absence of the defendant. See also Griffin Marble Wks. v. Padgett, 77 Ga. 497. Judgment reversed.

All the Justices concurring.