Armstrong v. Oglethorpe Bridge & Turnpike Co.

18 Ga. 607

Opinion

By the Court.

Benning, J.

delivering the opinion.

[1.] The award appealed from was made on the 17th February, 1855. The decision, that the appeal should “ he> completed by the filing and entry of the” affidavit, was rendered on the 12th of April, 1855, at the first Court which -was held after the making of the award ; so, that the appeal: was to the first Court coming after the date of the award appealed from, and was within less than two months after the date of the award.

The Statute authorizing an appeal in this case, does not say within what time it is that the appeal is to be entered!. Its language is, “ with the right of appeal to either party, to be tried by a Special Jury, at the next term thereafter, of the Superior Court,” &c. (Acts of 1851—'2, 192. Acts of 1845, 133.)

This would seem to imply, that if an appeal is in by the • next term, so that it may tried at that term, the appeal will be good.

In The State of Georgia vs. Dean, this Court held an appeal, made in a case similar to this, to be good, which appeal, though entered at the first term coming after the award appealed from, was not entered until the end of six months after the award had been made. The Act, too, governing that case, provided that appeals might be transmitted to the Clerk.No such provision is contained in this Act. Is it certain, therefore, that the Cflerk can receive an appeal under this Act ? Is it not the Court that, under this Act, is to receive an appeal ? (9 Ga. 406.)

Be that as it may, according to the decision in The State vs. Dean, an appeal, at the first term, is good. And the force of this decision is not to be destroyed by an obiter intimation (it is no more) of the Court, that such appeals are to be made within a reasonable time, and that four days after the award is a reasonable time.

We think the decision of the Court below ought to be affirmed.