Opinion
36917.
DECIDED NOVEMBER 12, 1957.
Appeal from court of ordinary; year's support. Before Judge Cobb. Walton Superior Court. August 12, 1957.
Jere Field, D. M. Pollock, Joseph B. Kilbride, for plaintiffs in error.
A. M. Kelley, contra.
An appellant or appellant's attorney at law or in fact shall pay all accrued costs and give bond to the ordinary for future costs which may accrue by reason of such appeal, after which an appeal may be made; otherwise the case shall be dismissed on proper motion.
DECIDED NOVEMBER 12, 1957.
Leavie Thomas Peppers filed an application for 12 months support from the estate of her deceased husband, Larry Washington Peppers. Appraisers were appointed, the property was assessed and a report was filed by the appraisers. The widow filed an objection to the year's support set aside by the appraisers on the ground that it was insufficient. After hearing evidence and argument, the Ordinary of Walton County set aside to the widow the homeplace with four acres of land, plus the household furniture in the homeplace. Jack H. Peppers and L. W. Peppers, Jr., objectors to the caveat, filed an appeal to the Superior Court of Walton County. The widow moved to dismiss the appeal on the ground that the appellants had failed to file a bond. Counsel for the appellants stated in his place that he had offered to make bond at the time of filing the appeal but that the ordinary had refused to set any bond, contending that a bond was not necessary inasmuch as the judgment of the ordinary from which the appeal was made conveyed real estate to the widow, that the matter was still pending before the ordinary, and that there were assets in such estate sufficient to pay all costs. The superior court rendered the following order: "The judgment of the court of ordinary having been made on November 15, 1956, and this appeal having been filed in the Superior Court of Walton County, Georgia, on November 16, 1956,
"A motion to dismiss the appeal having been made in the Superior Court of Walton County, Georgia on this date by counsel for Leavie Thomas Peppers, the widow and appellee, and after hearing argument from counsel for all parties, it is considered, ordered and adjudged that this appeal be and the same is hereby dismissed and that the appellee, Leavie Thomas Peppers, do have and recover of Jack H. Peppers and L. W. Peppers, Jr. $ _____ costs. It appears that no appeal bond was made by appellant.
"This August 12, 1957. "/s/ Carlisle Cobb Judge S.C.W.C." It is to this judgment that the case is here for review.Appellants in a court of ordinary must give bond (Code § 6-204) which bond may be amended (Code § 6-106) or new security may be given if necessary (Code § 81-1204). See also Hunter v. Lanier, 74 Ga. App. 177, 178 ( 39 S.E.2d 79). Counsel for the appellants cite Hill v. Hudspeth, 22 Ga. 621, which would have been authority for counsel's contention had it not been for the fact that in that case money was deposited with the ordinary in a sum sufficient to pay all future costs. Such is not true in the instant case. Under Code § 81-1301, appellants could not amend by giving bond after the motion to dismiss was made. See also Gordon v. Robertson, 26 Ga. 410.
The right of appeal did exist if proper procedure had been followed. Montgomery v. McCants, 49 Ga. App. 324 ( 175 S.E. 397), and McGahee v. McGahee, 204 Ga. 91, 96 ( 48 S.E.2d 675) are not applicable because those cases concern debts of a legatee. See Maddox v. Waldrop, 60 Ga. App. 702, 705 ( 4 S.E.2d 684) wherein this court said: "In the absence of . . . a proper bond . . . the appeal was and remained a nullity . . ." See also Samples v. Samples, 194 Ga. 383 ( 21 S.E.2d 601) wherein no legal bond was given and the case was dismissed. See Marks v. Henry, 85 Ga. App. 275 ( 68 S.E.2d 923) wherein that case was dismissed because the bond failed to meet the requirements of law. Code § 6-204 reads: "In all cases in the court of ordinary, the party desiring to appeal, his attorney at law or in fact, shall pay all costs that may have accrued, and give bond and security to the ordinary for such further costs as may accrue by reason of such appeal; this being done, the appeal shall be entered."
In the absence of the posting of a proper bond, it is evident that the Superior Court of Walton County did not err in dismissing the appeal.
Judgment affirmed. Townsend and Carlisle, JJ., concur.