Harvey v. Allen

19 S.E. 246, 94 Ga. 454, 1894 Ga. LEXIS 123

Opinion

The appellee moved to dismiss the appeal, on the ground that it was not entered and filed .with the ordinary within the time required.by law. The motion was sustained. The case was tried in the court of ordinary of Putnam county on November 7, 1892. Appellants’ counsel was told by the ordinary that he would draw on counsel for the cost, and that the ordinary would accept any appeal bond approved by the judge of Sumter county court. On November 8 the ordinary did draw on counsel for the cost, and the draft was paid on November 11. The ordinary left Putnam county for Atlanta on November 8, and did not return until the following Sunday, November 13. He had informed ■couusel of his intention to leave, but stated that counsel might send the appeal to him at Eatonton and he would have some one to receive it for him and file it. He did not mention that he had a clerk. On November 9 the appeal bond was executed, approved by the judge •of Sumter county court, and sent by mail (registered letter) to “ ordinary of Putnam county or his clerk,” and the receipt for the letter, and the entries of filing and approval of the appeal bond, all dated November 11, 1892, were signed by the name of the ordinary; but while the entry of approval and signature thereto written on the face of the bond were in his handwriting, the-entry of filing in office was not in his handwriting, and the signature thereto was in the handwriting of his daughter. He had a clerk, appointed March 7, 1892, for the special purpose of issuing marriage licenses. This clerk gave no bond. He did not get the letter sent by counsel. The ordinary’s family got his mail in his absence.

Butt & Lumpkin, for plaintiff in error. W. B. & S. T. Wingfield and J. S. Turner, contra.