Planters' & Miners' Bank v. Hudgins , 84 Ga. 108 ( 1889 )

Bleckley, Chief Justice.

1. The obligation of a security on an appeal bond is for “the eventual condemnation money.” Code, §3616. He is bound “for the judgment on the appeal.” Code, §3621. The eventual condemnation money is that which is recovered in the identical case in which the appeal is taken. Lockwood v. Saffold, 1 Ga. 72. The judgment for which he is bound is therefore a judgment to be rendered in that case. Without a recovery against the principal or his legal representative, there can be none against him. The opposite party cannot make a judgment in his favor obtained in another court, or in another suit, though on the same debt or demand, the measure of the liability of the security .on appeal. The latter is entitled to stand upon the terms of his contract, and they obligate him to abide the judgment after its rendition in the specific case in which the appeal was entered, and not the judgment rendered in some other case. If for any cause the opposite party cannot or will not bring that case to a final hearing and disposition so as to recover in the same some amount as condemnation money, it is his misfortune; for there is no such thing as obtaining judgment against the security on the appeal bond without first or simultaneously obtaining judgment in that identical ease against the principal or his representative. Here the plaintiff thought proper, because he was enjoined from proceeding in this action at law, to carry his demand before a court of equity and have it there allowed. Doubtless that court, if he had applied to it for leave and shown cause, would have granted him permission to prosecute this case for the purpose of fixing the condemnation money to be recovered therein. But whether it would or not makes no difference as to the liability of the security. He, as we have already said, was entitled to stand upon his con tract. Odell v. Wootten, 38 Ga. 224.

2. There was no error in dismissing the case at the instance of counsel representing Hudgins, the security on appeal, as the plaintiff declined to accept a continuance to give opportunity for having the estate of the deceased appellant represented and for making such representative a party to the action.

Judgment affirmed.