Wood v. McCrary

Simmons, C. J. Plaintiff in error entered an appeal from the-judgment of a justice of the peace to the superior court, five days, exclusive of Sundays, after the rendition of the judgment, which was for an amount greater than fifty dollars. Upon the-call of the case in the superior court, the appeal was dismissed on the ground that it had not been entered within time. Exception was taken. Whether or not the judgment dismissing-the appeal was correct depends upon the construction of two-sections of the code. Section 4138 of the Civil-Code is as follows : “ Either party being dissatisfied with the judgment of’ the justice of the peace or notary public, and upon all confessions of judgment, provided the amount claimed in said suit-is over fifty dollars,- may, as a matter of right, enter an appeal from said judgment, within four days (exclusive of Sundays) after the rendition of such judgment, under the same rules, regulations, restrictions, and liabilities as are provided on the subject-of appeals. ” Section 4455 of the Civil Code is as follows: ‘ ‘ Appeals to the superior court must be entered within four days after the adjournment of the court in which the judgment -was-rendered.” The plaintiff in error insists that his case is controlled by the latter section. In order to determine which section controls appeals from the judgments of a justice of the peace to the superior court, it is necessary to go to some extent into, the history of the two sections and into the subject of' appeals generally. Section 4455 is codified from the judiciary act of 1799, which allowed appeals in the superior court from a petit jury to a special jury, and appeals from the inferior to-the superior court. Appeals under that act could be taken four days after the adjournment of the court rendering the judgment. There was no provision in that act for appeals to the superior-court from a justice’s court. As far as we can ascertain, there-was no appeal from the judgment of a justice of the peace to a jury, in either the justice’s court or the superior court, until the-act of 1811 which allowed an appeal from the judgment of a justice to a jury in the justice’s court. The constitution of 1868-abolished this right of appeal from the judgment of a justice-of the peace to a jury in the justice’s court, but gave the right, of appeal from the judgment of a justice of the peace to a. [347] jury in the superior court where the amount involved was over fifty dollars. Under the constitution of 1877, the General Assembly left this provision unchanged, but in addition gave the right to appeal from the judgment of a justice of the peace to a jury in the justice’s court in all civil cases. Hence, in cases involving less than fifty dollars there is a right of appeal to a jury in the justice’s court, and in those involving more than fifty dollars there is a right of appeal to a jury in either the justice’s court or the superior court. The time within which the appeal must be taken from the judgment of a justice of the peace to the superior court has never been changed. The act of 1868 is still in force, and that act expressly provides that the appeal must be entered within four days from the rendition of the judgment. So it would seem that we have two systems of appeal: section 4138 et seq., applying only to judgments rendered by a justice of the peace; and section 4455, applying to other inferior judicatories. It is clear, therefore, that section 4455 does not apply to appeals from judgments in a justice’s court, and that section 4138 does so apply. An appeal from the judgment of a justice of the peace must, therefore, be entered within four days from the date of the rendition of the judgment appealed from, and the court did not err in dismissing the appeal in the present' case. Black v. Peters, 64 Ga. 628. Judgment affirmed. All the Justices concurring.