Robison v. Medlock

Bleckley, Judge.

The constitution gives the right of appeal. Code, §5104. The statute regulates its exercise. Ib., §§3610 to 3631. Section 3626 makes it the duty of the justice of the peace to transmit the appeal to the clerk of the superior court at least ten days before the next term of the court. When this duty is omitted, and the justice delays the transmission till the first day of the term, is the appeal to be dismissed ? There is no statute which so declares, and the spirit of our law is against depriving a party who has duly entered an appeal, of the benefits thereof, on account of failure by the officers in their appointed functions, where that failure has not been induced or sanctioned by the appellant. 31 Ga., 357. The appeal, when once entered, suspends the prior judgment, and cannot be withdrawn without consent of the adverse party. Code, §§3628, 3629. If found to be frivolous, and intended for delay only, the law assesses the damages at twenty per cent. Ib., §3631. This provision for damages would seem to be the only legal check on delay. The rate is equal to almost three years’ interest. The Code, as to the time of transmission, is directory to the magistrate. TUs failure would be cause for mandamus at the instance of either party, both parties having an interest in the prompt and timely transmission. As the law now stands, however, application for mandamus could not be made until no more than ten days of the time preceding the term remained. In the present case, the magistrate performed his duty on the first day of the term, which was as soon as the most rapid writ of mandamus could have run its course.

Cited for plaintiff in error, 18 Ga., 287; 30 Ib., 942; 31 Ib., 357.

Judgment reversed.