Gustoso Cigar Manufacturing Co. v. Ray , 117 Ga. 565 ( 1903 )

Lamar, J.

The cigar company insists that, notwithstanding the order of discharge, the court should have granted a supersedeas and remanded the defendant to the custody of the sheriff until the termination of the case in this court. The policy of the law is against allowing the status to be changed until the final termination of a' case in the court of last resort, and notice of certiorari, appeal bonds, counter-affidavits and bonds, filing bills of exception under the Civil Code, § 5552, perform the office of a supersedeas without the intervention of the judge. Under the Civil Code, § 4925 the chancellor is expressly authorized, in injunction cases, to grant such order and require such bond as may be necessary to preserve and protect the rights of the parties until final judment. A supersedeas is either a matter of statutory right, or vested in the discretion of the judge of the superior court under the Civil Code, § 4321. There may be instances in which it would be necessary to mold and frame the order of supersedeas so as to meet the exigencies of the case, the general principle being that the losing party has the right, on giving bond and security, to maintain the status until the return of the remittitur from the Supreme Court. But it is the losing party who must act in order to prevent the judgment from being carried into effect. When the court found that the defendant was entitled to his discharge, that judgment was conclusive until reversed, and should have been enforced unless superseded. There was no Teason for requiring the defendant, who had secured an absolute order of discharge, to give bond in order to take advantage of the judgment in.his own favor. If the cigar company had immediately given notice of its intention to present a bill of exceptions and asked for time to supersede the order, the court would have allowed time in which to file the same (Lindsey v. Lindsey, 14 Ga. 660 (3); Holcomb v. Roberts, 19 Ga. 590; Crawford v. Ross, 39 Ga. 44), and the question would then have been raised as to what should be the terms and conditions of a supersedeas in bailtrover ; whether the writ must be molded, whether only a judge of the superior court could grant the same, or whether 'Civil Code, § 5552, applies. Marks v. Hertz, 65 Ga. 119; Southern Express Co. v. Lynch, 65 Ga. 240; Lindsey v. Lindsey, 14 Ga. 661; Irwin v. Jackson, 34 Ga. 101. But there was no'offer on the part of the cigar company to give bond for damages, as in the Lynch case, or even to comply with section 5552; and the order of the judge suspending the discharge unless the defendant would give a bond for $700 was quite as much as the company had the right to ask.

The evidence as to the defendant’s ability to give bond was conflicting, but ther.e was enough to sustain the finding; and the judgment is Affirmed.

By five Justices.