Hill v. Hudspeth

22 Ga. 621

• Court: Supreme Court of Georgia
• Decided: June 15, 1857
• Docket: No. 22
• Status: Published

Opinion

By the. Court.

Benning, J.

delivering the opinion.

It is very doubtful whether the appeal was not sufficient as it stood.

All that the statute requires of the appellant is, to give “security.” Cobb’s Dig. 283. The word used is security, not surety, and the word, strictly taken, means not a person — a person who becomes bound for another, but a thing, such a thing, as a bond, a promissory note, a mortgage, a pawn, a deposite of money.

Sufficient money was deposited in this case to secure the appellee. If, therefore, the word “security,” in the statute, is to be taken strictly, this appeal was good.

It must be admitted, however, that the word is used, in many of our statutes, in-the sense of the word surety. The word is, perhaps, at this day, broad enough to. include the word surety. If it is, then an appeal would be in strict compliance with the statute, whether what was taken by the Clerk or Ordinary as surety was a sufficient thing or a sufficient person.

But even if the word is to be treated as having the same meaning as the word “ surety,” still we think that the appeal was amendable. Burkhalter vs. Bullock, 18. Ga. Rep. 372; Hooks vs. Stamper, Id. 472. A part of the ninth section of the Judiciary Acl of 1799, is as follows: “And no petition, answer, return, process, or other proceeding in anjr civil cause, shall be abated, arrested, quashed or reversed, for any defect in matter of form, or for any clerical mistake, or omission, not affecting the real merits of the cause; but the Court, on motion, shall cause the same to be amended without any additional cost, at. the first Term, and shall proceed to give judgment according to the right of the cause and matter of law, as it shall appear to the said Court, without regard to such imperfections in matter of form, clerical mistake, or omission.” Cobb’s Dig. 1136.

An appeal is a “proceeding,” and is not the Clerk’s omission to take a surety a “clerical omission,” and' one “not affecting the real merits of the cause ?”

Judgment reversed.