Staton v. Exchange Bank , 14 Ga. App. 7 ( 1913 )

Russell, C. J.

1. The motion to dismiss the bill of exceptions is without merit.

2. There being no affirmative proof that the appeal was filed within the time allowed by law, the superior court erred in overruling the motion to dismiss the appeal. It appears from the appeal bond that it was executed within four days from the trial, and it appears that the bond was approved, but it does not appear that it was approved within the time allowed by law. Parol evidence would have been admissible as affirmative proof that the bond was in fact filed in the justice’s court within the time allowed. Norrell v. Morrison, 99 Ga. 317 (25 S. E. 100); Huzza v. Clark, 102 Ga. 579 (27 S. E. 677); Southern Ry. Co. v. Empire Printing &c. Co., 120 Ga. 43 (47 S. E. 542). But in the absence of any proof upon the subject, no presumption that the appeal was in fact timely filed arises from the recital as to the date of execution of the bond. The execution of a paper and its filing are not necessarily synchronous or contemporaneous.

Decided November 25, 1913.

Appeal; from Floyd superior court — Judge Wright. July 18, 1913.

Harris & Harris, for plaintiff in error. Lipscomb, Willingham & Wright, Nathan Harris, contra.

3. The foregoing ruling renders a decision upon the other points presented unnecessary. ’ Judgment reversed.