Perkins v. Rowland
| Decision Date | 30 September 1882 |
| Citation | 69 Ga. 661 |
| Parties | Perkins. vs. Rowland. |
| Court | Georgia Supreme Court |
Husband and Wife. Promissory Notes. Contracts. Before Judge Snead. Burke Superior Court. May Term, 1882.
Reported in the decision.
H. E. W. Palmer, by brief, for plaintiff in error.
Harper & Brother, by W. T. Davidson, for defendant.
I.A preliminary motion was made in this case to dismiss the writ of error, on the ground that the pauper affidavit, filed by the plaintiff in error in the court below to entitle her to the writ without paying the costs and giving the bond, etc., was not in conformity with the act of the general assembly, approved 27th September, 1881, (see acts 1880-1, p. 120), regulating the form of the pauper oath in carrying cases to the Supreme Court. This actdeclares: "Such oath shall state that the plaintiff in error because of poverty, is unable to pay the costs in said case, without stating conjunctively the inability of the plaintiff in error to give bond for the eventual condemnation money." The record here shows that the plaintiff filed her affidavit, stating "that she is unable, from her poverty, to pay the costs and give the security." It will appear that her affidavit is not in comformity with the recent act above quoted; but is this good cause to dismiss the writ of error? The statute, it is true, requires the plaintiff in error to enter into bond and pay the costs, or else, in lieu thereof, file the affidavit. But the failure to do so does not deprive this court of jurisdiction to hear the cause. This failure to pay costs and give bond, or file an affidavit" simply denies the complaining party a supersedeas to the judgment below, and nothing more. The giving of bond and security upon carrying up of cases to the Supreme Court, is optional, not compulsory. Where no bond is given, or affidavit filed, the opposite party is s.t liberty to proceed to enforce his rights in he court below by execution or otherwise, subject, of course, to the chances of a reversal. i Kelly, i.
Neither will the writ of error be dismissed because the record does not show that the costs in the court below have been paid. If the costs are not paid, the defendant in error may cause execution to issue, and proceed at once to make it in the court below. 6 Ga., 587. As the giving bond, or payment of costs, was not a condition precedent, which the record must show before we could take jurisdiction of the case, much less would the failure to file a pauper affidavit, whether perfect or not, operate to dismiss the writ from this court. Where, however, the pauper affidavit is defective, as in this case, the counsel for plaintiff in error is liable for the costs here taxed. Motion overruled.
2. This was a petition filed by the defendant in error to foreclose a mortgage on certain real estate situated in Burkecounty, which it was alleged the plaintiff in error had executed to secure the payment of a certain note made by\' her. The petition is brought in the name of the plaintiff as transferee and bearer of the note and mortgage sought to be foreclosed. It is alleged that the note and mortgage were made and delivered to one Chesley Toler, who, in due course of trade, for value and before due, transferred both note and mortgage to petitioner. The note was a negotiable paper upon its face.
To this petition defendant filed her plea of general issue; and further, that the note and mortgage were given to C. Toler, the payee, as security for a debt of her husband, George C. Perkins, and that the same is, therefore, illegal and void; that her husband owed said Toler for a mule, and this note and mortgage were given by her to secure said debt of her husband's. To this plea plaintiff below demurred, on...
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Hawn v. Chastain
...bond simply means that the judgment of the trial court may be enforced and is no ground for dismissing the appeal. Perkins v. Rowland, 69 Ga. 661 (1882); Spooner v. Coachman, 18 Ga.App. 705, 90 S.E. 373 (1916)." The Court of Appeals in the case at bar distinguished Crymes on two bases, firs......
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Shurley v. State
...in error has paid the costs in this court, they will not be refunded. Brucker v. O'Connor, 115 Ga. 95, 97, 41 S.E. 245; Perkins v. Rowland, 69 Ga. 661 (1a); Summerour v. State, 172 Ga. 560 (1c), 158 S.E. 327. 2. Where, as here, the trial judge omitted in the charge originally given to the j......
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Middle Georgia Livestock Sales v. Commercial Bank & Trust Co.
...had to be both immoral and illegal, and if it was made penal by statute the act was illegal and immoral as a matter of law. Perkins v. Rowland, 69 Ga. 661, 664. The present statute only requires illegality of the transaction which renders the obligation of the party a nullity. Whether or no......
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Southern Mut. Bldg. & Loan Ass'n v. Perry
...v. Vance, 99 Ga. 531, 27 S. E. 152—citing Howard v. Simkins, 70 Ga. 322, and Strauss v. Friend, 73 Ga. 782; also, the cases of Perkins v. Rowland, 69 Ga. 661, and Laster v. Stewart, 89 Ga. 181, 15 S. E. 42, which are somewhat in point. The decision In Venable v. Lippold (Ga.) 29 S. E. 181, ......