Dillingham v. Eslinger

Court of Appeals of Georgia

Dillingham v. Eslinger

122 S.E. 627, 32 Ga. App. 36, 1924 Ga. App. LEXIS 238

CourtCourt of Appeals of Georgia

DecidedApril 15, 1924

Docket15287

StatusPublished

Cited by1 cases

This text of 122 S.E. 627 (Dillingham v. Eslinger) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dillingham v. Eslinger, 122 S.E. 627, 32 Ga. App. 36, 1924 Ga. App. LEXIS 238 (Ga. Ct. App. 1924).

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Opinion

Broyles, C. J.

1. A wife cannot legally sign as security an appeal bond given by her husband, and where she does so sign, and there is no other security on the bond, the appeal is a nullity and the bond cannot be amended by the addition or substitution of another security, and the appeal should be dismissed on motion. Section 5707 of the Civil Code (1910), which provides that an appeal bond may be amended, and new security given if necessary, refers only to cases where the security is lawful but merely inadequate. Benson v. Shines, 107 Ga. 406 (2), 407 (2) (33 S. E. 439), and citations; Chapple v. Tucker, 110 Ga. 467, 469 (35 S. E. 643); McEachern v. Clark, 18 Ga. App. 668 (90 S. E. 367), and citations. Under this ruling the court did not err in sustaining the certiorari and dismissing the appeal.

2. The first certiorari in this case not having been heard on its merits, but being dismissed because prematurely brought, a renewal of the suit by a second certiorari was in order. Smith v. Walkeen Millinery Co., 12 Ga. App. 119 (76 S. E. 992).

3. It appearing that the writ of error in this ease must have been sued out for the purpose of delay only, the request of the defendant in error for the award of ten per cent, damages is granted.

Judgment' affirmed, with damages,

huke and Bloodworth, JJ., concur.

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Broyles, C. J.

1. A wife cannot legally sign as security an appeal bond given by her husband, and where she does so sign, and there is no other security on the bond, the appeal is a nullity and the bond cannot be amended by the addition or substitution of another security, and the appeal should be dismissed on motion. Section 5707 of the Civil Code (1910), which provides that an appeal bond may be amended, and new security given if necessary, refers only to cases where the security is lawful but merely inadequate. Benson v. Shines, 107 Ga. 406 (2), 407 (2) (33 S. E. 439), and citations; Chapple v. Tucker, 110 Ga. 467, 469 (35 S. E. 643); McEachern v. Clark, 18 Ga. App. 668 (90 S. E. 367), and citations. Under this ruling the court did not err in sustaining the certiorari and dismissing the appeal.

2. The first certiorari in this case not having been heard on its merits, but being dismissed because prematurely brought, a renewal of the suit by a second certiorari was in order. Smith v. Walkeen Millinery Co., 12 Ga. App. 119 (76 S. E. 992).

3. It appearing that the writ of error in this ease must have been sued out for the purpose of delay only, the request of the defendant in error for the award of ten per cent, damages is granted.

Judgment' affirmed, with damages,

huke and Bloodworth, JJ., concur.

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Bluebook (online)

122 S.E. 627, 32 Ga. App. 36, 1924 Ga. App. LEXIS 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillingham-v-eslinger-gactapp-1924.

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