Kitchens v. Durham Motor Co.

161 S.E. 280, 44 Ga. App. 289, 1931 Ga. App. LEXIS 675

• Court: Court of Appeals of Georgia
• Decided: November 11, 1931
• Docket: 21729; 21730
• Status: Published

Opinion

Broyles, C. J.

In each of these cases the plaintiff in error entered an appeal in forma pauperis from the judgment of a justice of the peace to a jury in the justice’s court. On the hearing of the appeal the magistrate, on motion of counsel for the defendant in error, dismissed it upon the ground that the affidavit in forma pauperis was insufficient in law, since it stated conjunctively, instead of disjunctively, the affiant’s inability to pay the costs and give the required security. The judge of the superior court, on certiorari, sustained the judgment of the magistrate and overruled the certiorari.

The material part of the affidavit (in so far as the question now under consideration is involved) was as follows: “and that owing to his poverty he is unable to pay the cost and owing to his poverty he is unable to give the security required by law 'in cases of appeal.” The affidavit was fatally defective for the reason stated in the motion to dismiss the appeal. Abernathy v. Mitchell, 113 Ga. 127 (2) (38 S. E. 303); Ball v. Mapp, 114 Ga. 349 (40 S. E. 272); Truitt v. Shumate, 107 Ga. 235 (33 S. E. 48). The judge of the superior court properly overruled the certiorari.

Judgment in each case affirmed.

Luke and Bloodworth, JJ., concur.