Robinson v. Gordon

85 Ga. 559 | Ga. | 1890

Bleckley, Chief Justice.

A more striking misconception or misapplication of law than this case presents we have never known. Grant that the bond was a supersedeas bond such as is contemplated in section 4263 of the code, still it was given in'a criminal case and was conditioned, not for payment of condemnation money, but for the appearanee of the accused, who had been sentenced, not to pay a fine, but to serve in the chain-gang. Suppose, also, that the failure to take steps to carry the case to the Supreme Court was equivalent to actually carrying it there, with the result of an affirmance of the judgment below. That judgment being one for punishment and not for the' payment of money, how would it be possible to apply the provisions of the act of 1870, forming a part of section 4268 of the code, to the case ? For that act only gives the option of entering up judgment in the way and manner of doing it on appeal bonds, or else on bonds given for the stay of execution. To do it in either of these modes implies that the affirmed judgment «must be one for money, and that the judgment to be entered on the bond is not for the penalty of the bond, but for the amount of the judgment which has been affirmed. The truth is, that the act of 1870 applies only to supersedeas bonds given in civil cases, and that to recover the penalty of a supersedeas bond given in a criminal case, scire facias is the remedy. Such bonds are to be forfeited, and the forfeiture enforced under the general provisions of law found in sections 4702, 4703 of the code. The judgment rendered on the bond in this case upon mere motion was a nullity, and the motion to set it aside should be granted.

Judgment reversed. '