Josey v. Sheorn

32 S.E. 118, 106 Ga. 204, 1898 Ga. LEXIS 57

• Court: Supreme Court of Georgia
• Decided: December 15, 1898
• Status: Published

Opinion

Lumpkin, P. J.

The court below dismissed an appeal from a justice’s court, which had, before the passage of the act of 1897, amending section 4465 of the Civil Code (Acts 1897, p. 82), been entered in forma pauperis. The ground of the dismissal was, that the affidavit was insufficient because, though it was therein stated that the appellant, on account of poverty, was unable “to give the security required by law in cases of appeal,” there was no allegation that he was unable by reason of poverty “to pay the cost.” Undoubtedly, as matters thus stood, the motion to dismiss was good. Cheshire v. Williams, 101 Ga. 814. The appellant, however, “proposed to amend the affidavit” so as to make the same conform to the legal requirements. The court rejected the amendment, and did so rightly, because it was not shown that the omission in the affidavit as originally filed was by accident or mistake; and it was, under section 5124 of the Civil Code, essential to do this in order to render such an affidavit amendable. See the cases cited under this section.

Judgment affirmed.

All the Justices concurring.