Whitson v. McNutt & Co. , 1921 Ga. App. LEXIS 104 ( 1921 )

Jenkins, P. J.

We think that the reasoning in Cook v. King, T. U. P. Charlton, 265, that a plaintiff is not required to give bond because his security to the defendant would be “nugatory, and, if nugatoiy, the law did not require it,” is unsound, and that in the instant case the learned judge of the superior court was correct in what seems to have been his view that such a bond was required. Among other reasons why the requirement of bond and security from a plaintiff might be necessary for the protection of the defendant, it might be suggested that if the defendant obtain a verdict after plaintiff’s appeal, the defendant must pay the compensation of the jurors, which is taxed as costs against the plaintiff; so that the defendant is directly concerned in security for the recovery of this item of future costs, for which, if finally successful, he may provide in his judgment. Again, should the defendant file a plea of set-off or recoupment, and recover on appeal a verdict against the plaintiff, the plaintiff’s bond could be even more essential.

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. Hooks v. Stamper, 18 Ga. 471; Hill v. Hudspeth, 22 Ga. 621; Shirley v. Prince, 30 Ga. 328; Gittens v. Whelchel, 12 Ga. App. 141 (76 S. E. 1051); Sherman v. Morris, 17 Ga. App. 446 (87 S. E. 709). In the instant case the instrument imposes no obligation whatever on the security so as to render the instrument a valid bond. None of the decisions seem to go so far as to hold amendable an instrument which is a mere nullity; it is held that it cannot be amended. Benson v. Shines, 107 Ga. 406 (33 S. E. 439); McMurria v. Powell, 120 Ga. 766 (48 S. E. 354); Harvely v. Daly, 112 Ga. 822 (38 S. E. 41); Chapple v. Tucker, 110 Ga. 467, 469 (35 S. E. 643); Roberts v. Napier, 126 Ga. 693 (55 S. E. 914).

But we are reluctant, in view of the authorities allowing amendments, to hold that the court below was in error in holding amendable the particular instrument in question. The difficulty involved in such a decision seems to be avoided here, for the reason that when the defendant moved to dismiss the appeal, for want of a valid bond, no tender of any amendment such as would make the instrument valid was made. We do not think that then and there insisting that such right of amendment existed was equivalent to the exercise of such a right. This court cannot know what amendment would have been offered, or whether, if any had been in fact offered, it would have complied with the terms of the statute. In the absence of such tender of a proper bond or amendment, the appeal was and remained a nullity, and we think the certiorari should have been overruled.

Judgment reversed.

Stephens and Hill, JJ., concur.