National Bank v. Little

Court of Appeals of Georgia

National Bank v. Little

154 S.E.2d 624, 115 Ga. App. 327, 1967 Ga. App. LEXIS 1095

CourtCourt of Appeals of Georgia

DecidedMarch 1, 1967

Docket42573

StatusPublished

This text of 154 S.E.2d 624 (National Bank v. Little) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

National Bank v. Little, 154 S.E.2d 624, 115 Ga. App. 327, 1967 Ga. App. LEXIS 1095 (Ga. Ct. App. 1967).

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Opinion

Hall,’Judge.

This appeal is from a judgment of the superior court overruling a motion to dismiss an appeal to the superior court from a judgment of the court of ordinary denying an application by Thomas G. Little, Jr., a minor, by his next friend Alex McLennan, for the removal of the appointed guardians of the person and property of the minor. The ground of the motion to dismiss the appeal is that the appeal bond did not bind the party appealing the judgment as principal but bound only the party’s next friend in his individual capacity. The bond was originally executed.

“/a/ ALEX McLennan (SEAL)

THOMAS G. LITTLE, JR., by his next friend, ALEX McLennan, Principal”

It was amended to be executed:

“THOMAS G. LITTLE, JR., by his next friend, alex Mclennan, (seal)

By: /s/ ALEX McLENNAN

Principal”

We cannot say that the manner of execution of the bond originally or as amended resulted in “no bond whatever being given by or on behalf of” the party or by someone acting [328]*328in his name, as in White v. Williamson, 44 Ga. App. 428 (161 SE 654), and Stewart v. Stewart, 106 Ga. App. 211 (126 SE2d 716). The named principal executing the bond was Thomas G. Little, Jr. The words accompanying the signature show that the next friend of the party is executing the. bond on behalf of the party and is acting in the name of the party.-- Nor can we say that the next friend signed the instrument as such “without more” so as to make it his individual undertaking, or that he did not sign the name of his principal with the result that the principal is not bound, as was held in McCoy v. Sasnett, 77 Ga. App. 819, 821 (49 SE2d 913). The next friend signed the party’s name, Thomas G. Little, Jr., by means of a typewriter and his own name by pen, resulting in the execution of the bond by the party as principal.

Felton, C. J., and Eberhardt, J., concur. Submitted February 6, 1967 Decided March 1, 1967. Troutman, Sams, Schroder & Lockerman, Tench C. Coxe, William H. Schroder, John D. McLanahan, Frank Fuller, for appellants. Alex McLennan, Stone & Stone, Noah J. Stone, for appellee.

It is not contended that the next friend was not authorized to execute and sign the appeal bond on behalf of the minor as principal. Under Code § 6-107 the party to the proceeding in the court of ordinary appealed to the superior court and was bound as principal on the bond. Ganns v. Worrell, 216 Ga. 512 (117 SE2d 533); Touchton v. Stewart, 222 Ga. 455 (150 SE2d 643). The trial court did not err in overruling the appellant’s renewed motion to dismiss and motion to strike amendments.

Judgment affirmed.

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Hall,’Judge.

This appeal is from a judgment of the superior court overruling a motion to dismiss an appeal to the superior court from a judgment of the court of ordinary denying an application by Thomas G. Little, Jr., a minor, by his next friend Alex McLennan, for the removal of the appointed guardians of the person and property of the minor. The ground of the motion to dismiss the appeal is that the appeal bond did not bind the party appealing the judgment as principal but bound only the party’s next friend in his individual capacity. The bond was originally executed.

“/a/ ALEX McLennan (SEAL)

THOMAS G. LITTLE, JR., by his next friend, ALEX McLennan, Principal”

It was amended to be executed:

“THOMAS G. LITTLE, JR., by his next friend, alex Mclennan, (seal)

By: /s/ ALEX McLENNAN

Principal”

We cannot say that the manner of execution of the bond originally or as amended resulted in “no bond whatever being given by or on behalf of” the party or by someone acting [328]*328in his name, as in White v. Williamson, 44 Ga. App. 428 (161 SE 654), and Stewart v. Stewart, 106 Ga. App. 211 (126 SE2d 716). The named principal executing the bond was Thomas G. Little, Jr. The words accompanying the signature show that the next friend of the party is executing the. bond on behalf of the party and is acting in the name of the party.-- Nor can we say that the next friend signed the instrument as such “without more” so as to make it his individual undertaking, or that he did not sign the name of his principal with the result that the principal is not bound, as was held in McCoy v. Sasnett, 77 Ga. App. 819, 821 (49 SE2d 913). The next friend signed the party’s name, Thomas G. Little, Jr., by means of a typewriter and his own name by pen, resulting in the execution of the bond by the party as principal.

Felton, C. J., and Eberhardt, J., concur. Submitted February 6, 1967 Decided March 1, 1967. Troutman, Sams, Schroder & Lockerman, Tench C. Coxe, William H. Schroder, John D. McLanahan, Frank Fuller, for appellants. Alex McLennan, Stone & Stone, Noah J. Stone, for appellee.

It is not contended that the next friend was not authorized to execute and sign the appeal bond on behalf of the minor as principal. Under Code § 6-107 the party to the proceeding in the court of ordinary appealed to the superior court and was bound as principal on the bond. Ganns v. Worrell, 216 Ga. 512 (117 SE2d 533); Touchton v. Stewart, 222 Ga. 455 (150 SE2d 643). The trial court did not err in overruling the appellant’s renewed motion to dismiss and motion to strike amendments.

Judgment affirmed.

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Bluebook (online)

154 S.E.2d 624, 115 Ga. App. 327, 1967 Ga. App. LEXIS 1095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-bank-v-little-gactapp-1967.

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