Holston Box & Lumber Co. v. Holcomb , 30 Ga. App. 651 ( 1923 )

Stephens, J.

1. In the case of a corporation entering an appeal to the superior court “ the appeal may be entered by the president or any agent thereof managing the case or by the attorney of record.” Civil Code (1910), § 5005. An appeal purporting to be entered by a corporation was properly dismissed when the affixing of the name of the corporation appeared to be by a person by name, without any descriptive term indicating whether the person affixing the name of the corporation was one of the parties authorized by law to enter the appeal in behalf of the corporation, and.where it nowhere appears from the record that the appeal was authorized by the corporation in any manner prescribed by law. See, in this connection, Civil Code (1910), §§ 5000 et seq.; § 5707; Crum v. Allen, 11 Ga. App. 203 (75 S. E. 108); Sanders v. Mathewson, 121 Ga. 302 (48 S. E. 946); King Hdwe. Co. v. Bowden, 113 Ga. 924 (39 S. E. 404).

Decided July 16, 1923. B. Noel Steed, W. E. & W. G. Mann, for plaintiff in error. II. II. Anderson, Maddox, McCamy & Shumate, contra.

2. An offer to amend the entry of appeal in response to a motion to dismiss the appeal, by showing that the person'signing the name of the corporation was at the time the “ general manager ” of the corporation, is insufficient, since it does not appear that such “ general manager,” without more, was one of the parties authorized by law to enter the appeal.

3. An offer to amend by having the attorney of record in the lower court sign the entry of appeal for and in behalf of the corporation was not permissible, since such was not an offer to amend, but was in reality an offer to re-execute the entry of appeal.

4. The court properly disallowed the proffered amendments and properly dismissed the appeal; but since this court has the power “to award such order and direction to the ease in the court below as may be consistent with the law and justice of the case” (Civil Code of 1910, § 6205; Ga. L. 1916, p. 21), the judgment is affirmed, with direction that the appellant be allowed to amend the appeal by showing, if he can, that the party signing in behalf of the corporation was at the time of entering the appeal the agent of the corporation managing the ease, as provided in the Civil Code (1910), § 5005, above referred to, or that the appellant be allowed to amend to meet the requirements of the Civil Code (1910), § 5002. Upon so doing at the next term of the superior court of Murray county, following the receipt of the remittitur from this court, the appeal shall be reinstated. See, in this connection, Dellinger v. Elm City Cotton Mills, 26 Ga. App. 780 (107 S. E. 264).

Judgment affirmed with direction.

Jenkins, P. J., amd Bell, J., concur.