Lyner v. Jackson

[774] By the Court. McDonald, J. delivering the opinion. [1.] The plaintiff in error, who was defendant in the Court below, executed an appeal bond, during the term of the Court, on the minutes of the Court, which were signed by the presiding Judge. At the bottom margin of the bond was this entry: “ Costs to appeal $27 27|-, not paid,” signed by the Clerk. A motion was made to dismiss the appeal, because the costs were not paid within four days after the adjournment of the Court, and the appeal was dismissed on that ground; and to the decision of the Court dismissing the appeal, an exception was taken. The defendant’s Counsel, after the return of the verdict of the Jury, directed the Clerk to draw an appeal bond; the Clerk demanded the costs, and in reply, defendant’s Attorney asked if he wanted the costs in advance; the answer to this inquiry. was not remembered by the Clerk, who was the witness ; the Attorney told the Clerk that he would see the costs paid, soon after the adjournment of the Court, and to hold him responsible for ••them; the Clerk made no objection, and it was an arrangement between them; this conversation passed during the recess of the Court for dinner; no bill of costs was tendered. On the same day, the appellant and his security rode up in a carriage near the academy, where the Court was held. The appellant being an infirm man, the Clerk carried the book out and requested the defendant to sign the bond. No demand was made of him of the costs. It does not appear in the record that the appellant or his Attorney knew of the entry made by the Clerk, at the margin of the bond; the Clerk put the case on the appeal docket; the costs were subsequently paid by appellant’s Attorney, but not until the time for entering appeals had expired; the bond signed by the parties, and on the minutes of the Court, written by the Clerk, recites that defendant had paid all costs. The facts of this case are not identical with those in Short vs. Cohen, (11 Ga. Rep. 39,) but the principle is the same, [775] and we will not disturb the ruling in that case. Such Statutes as ours, authorizing appeals, are usually construed strictly, and parties are generally held to a compliance with-their terms; but the reasoning of the Court in the above caséis strong and able, and we are not disposed to depart from-it, as it is more a matter of practice than of right, under the-law. The appellee cannot he affected by the question. He-has his security, and he cannot be called on for the costs; for if they were not actually paid, the Clerk, who Vas the ■ proper officer to collect them, is estopped, by his own acts,, from saying that they were not paid. He wrote the bond,, reciting that all costs were paid, presented it to appellant-' and his security for their signature, made no demand of costs at the time, and from what may be presumed to have passed between the appellant and his Attorney, it may he fairly inferred that he supposed the matter of costs had all been attended to. The judgment of the Court below must be reversed, and. the case is ordered to be re-instated on the appeal docket,. and stand for trial as other appeal cases.