Huzza v. Clark & Roberts

27 S.E. 677, 102 Ga. 579, 1897 Ga. LEXIS 616

• Court: Supreme Court of Georgia
• Decided: July 14, 1897
• Status: Published

Opinion

Lumpkin, P. J.

1. As against a motion to dismiss an appeal on the ground that it was not entered within the time prescribed by law, it must affirmatively appear that the appeal .was in fact so entered.

2. Where a judgment was rendered in a justice’s court on the 4th day of September, and the entry upon the docket of that court showed that an appeal was entered on the 12th day of the same month, the appeal was prima facie too late; nor could such appeal be saved because the appeal bond, which was undated, recited that it was tendered “ within the time prescribed by law for entering appeals”; nor because of the fact that the losing party went into the office of the justice “with bond in proper time,” it not appearing that the bond on the occasion thus referred to was left with the magistrate, or that it was ever filed with or approved by him before the entry above mentioned was made upon his docket.

Submitted June 5, Decided July 14, 1897.

Appeal. Before Judge Lumpkin. Fulton superior court. September term, 1896.

R. J. Jordan, for plaintiff in error. L. P. Sheen, contra.

Judgment affirmed.

All the Justices concurring.