In an appeal from the trial of a claim arising out of a mortgage foreclosure, the court did not err in allowing the appeal bond to be amended by changing the designated appellee from the defendant in the foreclosure to the claimant, the only matter having been tried being the claim case.

DECIDED DECEMBER 4, 1946. Ed Ausmus filed a claim to a Ford pickup truck which was levied on under a mortgage foreclosure in favor of Herbert F. Stevens against Cecil Hicks. The justice of the peace trying the claim case found in favor of the claimant. Stevens, the plaintiff in the foreclosure proceeding, filed an appeal and bond in the case. The caption of the appeal was "Herbert F. Stevens v. Cecil Hicks. Mortgage Foreclosure in J. P. Court. 872nd District G. M., Whitfield County, Georgia." The body of the appeal and bond was as follows: "And now comes Herbert Foster Stevens in the above-stated case, and being dissatisfied with the judgment rendered therein, and having paid all the costs which have accrued in the case up to the time of entering this appeal, and within the time allowed by law, enters this his appeal to a jury in the superior court of said county. And the said appellant as principal, and the undersigned security, are bound unto Cecil Hicks, appellee mentioned in the caption, for the eventual condemnation money in said case. Witness the hands and seals of the undersigned this the 27th day of April, 1946. Herbert F. Stevens, principal; O. B. Stevens, security. *Page 598 Attested and approved by Robert Deck, J. P., 872 Dist., G. M." The claimant, Ed Ausmus, filed a motion to dismiss the appeal on the ground that it appeared from the record that the only judgment rendered in the case was in favor of Ed Ausmus, and he was not a party to the appeal, and that there was no sufficient bond and no bond for future costs. The plaintiff offered an amendment to the appeal and bond, which struck the name of Cecil Hicks as appellee and substituted the following, "are bound unto Ed Ausmus for the eventual condemnation money and further costs in said case," which was signed by the appellant and security. The claimant then filed a motion to strike the amended appeal on four grounds: "(1) Because the said Ed Ausmus is not a party to the original appeal filed in this case. (2) Because this amendment is in effect an attempt to enter an appeal from the justice court to this court from a judgment entered on the . . day of April, 1946, which is more than four days from the date of rendering said judgment in the justice court. (3) Because there was no judgment rendered in the justice court in favor of Hicks from which the appellant Stevens could appeal, and therefore any appeal entered by Stevens in this case wherein Hicks is named as the appellee is a mere nullity. (4) Because said original appeal in this case is void for the reason that the record herein discloses that the case tried in the justice court was a claim filed by Ed Ausmus to certain property which had been levied upon by reason of a mortgage foreclosure in favor of Stevens against Hicks, and that Hicks was not a party to the proceeding out of which the judgment appealed from arose, and therefore any appeal by Stevens wherein Hicks is named as the appellee is a mere nullity and can not be amended." The court overruled both motions and the claimant excepted. "An appeal bond may be amended and new security given if necessary." Code, § 6-106. In Whitson v. McNutt Co., 26 Ga. App. 281 (105 S.E. 681), the court stated: "In some of the decisions our courts have gone far indeed in allowing the perfection by amendment of all sorts of instruments into appellate bonds." In that case there was an appeal but no bond in terms. The appeal, however, was signed by the appellant and a security. The court held that the appeal was amendable, but reversed the case *Page 599 because there was no offer to amend. The appeal and bond were held amendable in Shirley v. Price, 30 Ga. 328, where there was simply an entry on the minutes of the court that the defendant had paid the costs, and "I stand security on the appeal of the above-stated case." (Signed, "Beverly Shirley.") The naming of the ordinary as obligee in a bond has been held an amendable irregularity. Smith v. Powell, 134 Ga. 356 (67 S.E. 936). It was held in Hooks v. Stamper, 18 Ga. 471, that where the appellant and his security signed their names on the minutes of the court for the clerk to write the bond above, and he failed to do so, the signatures constituted a good appeal, and that the omission could be supplied at any time. In Hill v.Hudspeth, 22 Ga. 621, it was held that a mere deposit of money to cover future costs could be amended. Finally, inGittens v. Whelchel, 12 Ga. App. 141 (76 S.E. 1051), it was held that an appeal bond was properly allowed to be amended by changing the caption of the appeal so as to make the obligee the garnishee (appellee) in the case rather than the defendant. There is little distinction between the facts of that case and the one at bar. The case of Head v. Marietta Guano Co.,124 Ga. 983 (53 S.E. 676), is clearly distinguishable. There the real party did not file an appeal within time. Clearly he could not be allowed to do so by circumlocution after the time had expired.

Under the foregoing rulings, the court did not err in allowing the bond to be amended, and in refusing to dismiss the appeal.

Judgment affirmed. Sutton, P. J., and Parker, J., concur.