Washington v. Marcrum

Lewis, J. Under section 4468 of the Civil Code it is made the duty of the justice of the peace or notary public to transmit an appeal to the clerk of the superior court at least ten days Before the next superior court. If there should be a failure on the part of the justice to comply with this statute, growing out ■of his own negligence and not through any fault of the plain? tiff, this would not be sufficient ground for dismissing the appeal. It was ruled in the case of Robison v. Medlock, 59 Ga. 598, that an appeal from a justice’s court can not be dismissed for the delay of the magistrate, it not appearing that the appellant either caused the delay, or sanctioned it. Cannon v. Sheffield, 59 Ga. 103; Pearce v. Renfroe, 68 Ga. 194. In this -case, however, the delay was not at all the fault of the magistrate, but is attributable to the negligence of plaintiff’s counsel in taking the papers from the magistrate’s office and not seeing that they were returned in time for transmission to the superior •court within the period required by law. The decisions above •cited make the rule as to the transmission of an appeal identical with that touching writs of error to this court. Section •5571 of the Civil Code provides that, “In case the bill of exceptions and copy of the record shall not reach the clerk of the Supreme Court before the cases from the circuit to which it belongs shall have been disposed of, said case shall not be dismissed on account of a failure to return or send up the same at the proper time,” etc. In construing the law on this subject with reference to writs of error, this court has held that if the delay in the transmission of the record is attributable to the fault or negligence of the plaintiff in error or his counsel, the writ of error will be dismissed. Strong v. Ry. Co., 97 Ga. 693. Judgment affirmed. All the Justices concurring, except Itumpkin, P. J., absent.