DeFee v. Williams
| Decision Date | 07 November 1966 |
| Docket Number | No. 3,No. 42449,42449,3 |
| Citation | 114 Ga.App. 571,151 S.E.2d 923 |
| Parties | Larry DeFEE v. Henry L. WILLIAMS, Sr., Clerk |
| Court | Georgia Court of Appeals |
Larry DeFee, pro se.
Henry L. Williams, Sr., pro se.
Syllabus Opinion by the Court
Larry DeFee, d/b/a Aerial Surveys, applied to this court for issuance of a writ of mandamus against Henry L. Williams, Sr., Clerk of the Civil and Criminal Court of Cobb County, seeking to compel the clerk to forward to this court his appeal to the overruling of a motion for new trial on July 11, 1966, in Case No. 2024 of that court. In response to mandamus nisi issued by this court the clerk replied that the appeal was filed on August 9, 1966, that on August 16, 1966, before he could prepare the records, opposing counsel in the case file a motion for supersedeas bond, that on September 12, 1966, the judge of the trial court granted petitioner until September 16, 1966, to post supersedeas bond, which as of the date of the response had not been filed, that the costs of preparing the appeal had not been paid because he had not notified petitioner of the amount, and that on October 17, 1966, the judge of the trial court ordered a stay in the proceedings pending direction from this court. Held:
1. The Court of Appeals has jurisdiction to compel by mandamus the Clerk of the Civil and Criminal Court of Cobb County to transmit an appeal from that court to this court for its consideration. Code § 6-918; Cooper v. Nisbet, 118 Ga. 872, 873(1), 45 S.E. 692; Jones v. Smith, 83 Ga.App. 798, 799, 800, 65 S.E.2d 188.
2. The proviso of Section 8(a) of the Appellate Practice Act of 1965 (Ga.L.1965, pp. 18, 22; Code Ann. § 6-1002(a)) requiring a supersedeas bond on motion of an appellee to the trial court is intended to prevent the notice of appeal from serving as a supersedeas, and does not operate as a condition precedent to deprive an appellant of his right to have his appeal transmitted to the appellate court for review. In the absence of such bond as may be required by the appropriate court the appellee is free to enforce the judgment at his peril pending decision on appeal. For related decisions under former law, see cases annotated under the catchword Failure, Code Ann. § 6-1002.
3. The mandamus nisi is made absolute and the clerk is required to transmit forthwith the record on appeal.
Mandamus absolute granted.
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Hawn v. Chastain
...but simply allows the prevailing party (the appellee) to enforce the judgment pending appeal. As noted in DeFee v. Williams, 114 Ga.App. 571, 572, 151 S.E.2d 923, 924 (1966): "The proviso ... requiring a supersedeas bond on motion of an appellee to the trial court is intended to prevent the......
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Spivey v. Schneider, 29933
...with this appeal, that failure is not a proper ground for the dismissal of his appeal, as is well explained in DeFee v. Williams, 114 Ga.App. 571, 151 S.E.2d 923. Mrs. Schneider's motion to dismiss is 6. Code Ann. § 30-223, which Mrs. Schneider invokes in her motion for attorney fees and ex......
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Hubbard v. Farmers Bank
...to deprive an appellant of his right to have his appeal transmitted to the appellate court for review." DeFee v. Williams, 114 Ga.App. 571, 572, 151 S.E.2d 923, 924 (1966), and see Lake Spivey Parks, Inc. v. Jones, 118 Ga.App. 60, 162 S.E.2d 801 (1968); Byers v. Lieberman, 126 Ga.App. 582(1......
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DeFee v. I. S. Berlin Press, Inc., 42511
...the part of the counsel for the appellant, but to the stress of business in this office.' It further appears from DeFee v. Williams, Clerk, 114 Ga.App. 571, 151 S.E.2d 923, that the appellant brought a mandamus action against the clerk for the purpose of procuring the record, which was forw......