Sanders v. Mathewson

Lamar, J.

The judiciary act of 1799 required the appellant to give security, but said nothing about his signing a bond. The right to enter up judgment, and the whole scope of the act, however, clearly indicated that the security was not to be in the shape of a pledge or deposit, but in the form of a bond or recognizance, whether the same was by a separate instrument, or, as in Shirley v. Price, 30 Ga. 328, by a recognizance entered on the docket of the justice and signed only by the sureties. In every instance where the question has been passed on by this court, a bond of some sort had been actually given. Therefore these rulings are in point although the code now requires a “bond and security.” Of course the appeal must be by the proper party. And in order to show that he actually assents, good practice would suggest that he or his authorized attorney should execute the bond. Nisbet v. Lawson, 1 Ga. 275; King Co. v. Bowden, 113 Ga. 924; Kline v. Swift Co., 118 Ga. 514. In some States' by statute “ execution by ” the appellant is required, and hence the failure to sign will work a dismissal. 1 Enc. Pl. & Pr. 974. But in the absence of such requirement his failure to execute will not work such result, if the proper security is given. Ibid. Here the bond recites that the appeal was by the appellant and that she tendered the security. Inasmuch as there has already been a judgment againt her, and she is bound thereby, and will likewise be bound for the eventual condemnation-money in case another judgment is recovered against her on the appeal, it is a needless thing for the appellant to sign the appeal bond. 'The appellee requires nothing more from him except security, and that is furnished when the surety signs the bond. Maddox v. American. Trust Co., 109 Ga. 789.

The pleas to an unconditional contract in writing must be filed in the justice’s court; but a defendant would not lose his right to be heard because the officer failed to mark them filed. The appellant or his counsel can not of their own motion transmit the appeal papers to the clerk of the superior court, but there is nothing in the. record to show that in this case they had been unlawfully transmitted. We can not, therefore, consider these grounds, especially as the judge put his decision solely on the failure to give the proper bond. Civil Code, §§4139, 4468; Bower v. Patterson, 116 Ga. 814.

Judgment reversed.

All the Justices concur.