Mayo v. Kersey

24 Ga. 167

Opinion

Running, J.

By the Court. delivering the opinion.

By the Act of 1826, the plaintiff has the right to enter up judgment against the surety on appeal, as though the surety were a party defendant. Cobh Dig. 498.

But against a party defendant, the plaintiff has the right, in a proper case, to enter up judgment nunc pro tunc. 18 Ga. 287; 1 Kelly, 560; Id. 595.

He must, therefore, have the right, in a proper case, to enter up a similar judgment, against the surety on the appeal.

There can be no doubt, that this is a proper case.

We think, then, that the Court erred, in not allowing the plaintiff to eater up a judgment, nunc pro tunc, against Kersey.

The question, here, is merely one of remedy. The right is not denied; and, we think, that the remedy by motion is as good in every respect, as that by scire facias, or that by delrt

Judgment reversed.