Peppers v. Peppers

96 Ga. App. 668 | Ga. Ct. App. | 1957

Gardner, P. J.

Appellants in a court of ordinary must give bond (Code § 6-204) which bond may be amended (Code § 6-106) or new security may be given if necessary (Code § 81-1204). See also Hunter v. Lanier, 74 Ga. App. 177, 178 (39 S. E. 2d 79). Counsel for the appellants cite Hill v. Hudspeth, 22 Ga. 621, which would have been authority for counsel’s contention had it not been for the fact that in that case money was deposited with the ordinary in a sum sufficient to pay all future costs. Such is not true in the instant case. Under Code § 81-1301, appellants could not amend by giving bond after the motion to dismiss was made. See also Gordon v. Robertson, 26 Ga. 410.

The right of appeal did exist if proper procedure had been followed. Montgomery v. McCants, 49 Ga. App. 324 (175 S. E. 397), and McGahee v. McGahee, 204 Ga. 91, 96 (48 S. E. 2d 675) are not applicable because those cases concern debts of a legatee. See Maddox v. Waldrop, 60 Ga. App. 702, 705 (4 S. E. 2d 684) wherein this court said: “In the absence of ... a proper bond . . . the appeal was and remained a nullity . . .” See also Samples v. Samples, 194 Ga. 383 (21 S. E. 2d 601) wherein no legal bond was given and the case was dismissed. See Marks v. Henry, 85 Ga. App. 275 (68 S. E. 2d 923) wherein that case was dismissed because the bond failed to meet the requirements of law. Code § 6-204 reads: “In all cases in the court of ordinary, the party desiring to appeal, his attorney at law or in fact, shall pay all costs that may have accrued, and give bond and security to the ordinary for such further costs as may accrue by reason of such appeal; this being done, the appeal shall be entered.”

In the absence of the posting of a proper bond, it is evident that the Superior Court of Walton County did not err in dismissing the bill of exceptions.

Judgment affirmed.

Townsend and Carlisle, JJ., concur.