Hobbs v. Cody , 45 Ga. 478 ( 1872 )

McCay, Judge.

Section 3553 of the Code, allowing appeals from the judgment of the Ordinary, is general, and applies to all cases. The Constitution also gives this right of appeal from the Ordinary. Section 3567 also fixes the terms on which the appeal shall be allowed. It would be judicial legislation for us to fix other terms. Indeed, the Legislature, by Act of 1866, Code, section 3553, has provided other terms than were fixed by the old Code, in one special case. We do not feel authorized to make another exception.

Section 3559, without doubt, applies to appeals from other Courts than the Courts of Ordinary, since section 3553 had made other terms for such appeals. So section 3565 must be confined to appeals from other Courts than Courts of Ordinary, for the reason that section 3567, in almost the next breath, provides that in all cases in the Court of Ordinary the party desiring to appeal shall pay the costs and give security for further costs; and this being done, the appeal shall be entered. So that we can see no ground for the belief that any other terms have been prescribed for appeals from the Ordinary than those fixed in section 3567 of the Code.

It may be that the case before us is a casus omissus. If so, it is for the Legislature, not the Courts, to remedy the defect. We doubt, however, if there was any omission. The power given to the Ordinary to give such judgments is only of very questionable propriety; nay, even its constitutionality has been doubled, and it may well be that the codifiers and the Legislature adopting the Code, might feel that the security already given, to-wit: the bond taken at the appointment of the administrator or guardian was sufficient, and hesitated to entrust with the Ordinary the power to grant a judgment which could only be appealed from by giving new security who were to be bound by the judgment.

There was no right of action by the ward until his maturity The guardian had a right, and it was his duty, to keep and manage this estate until the majority of the minor. There was, therefore, no cause of action until after the 1st of June, 1865, and the Act of 1869 expressly provides that when the cause of action accrued after 1865, it should be regulated as to the Statute of Limitations by the Code. We think, therefore, the Court was in error in requiring the security, and that the cause of action was not barred.

Judgment reversed.