Holton v. Kea , 65 Ga. App. 5 ( 1941 )

Where an appeal in forma pauperis was entered within the time required by law, from a judgment for more than $50 in a justice's court, and when the case was called for trial in the superior court counsel for the appellee made a motion to dismiss the appeal because it did not show that it had ever been filed in the justice's court, it was error to dismiss the appeal, where it appeared from the uncontroverted extrinsic evidence that the appeal was actually filed within the time required by law with the magistrate who rendered the judgment, although he had failed to sign his name to an entry on the appeal, showing that it was filed with him. Pearce v. Renfroe, 68 Ga. 194; Norrell v. Morrison, 99 Ga. 317 (25 S.E. 700); Veruki v. Savannah Electric Co., 10 Ga. App. 201 (73 S.E. 41). See Code, §§ 6-301, 6-302, 6-304, as to when and how such an appeal may be entered and transmitted to the superior court.

Judgment reversed. Stephens, P. J., and Felton, J.,concur.

DECIDED APRIL 21, 1941. (STATEMENT OF FACTS BY SUTTON, J.) In a distress-warrant proceeding a judgment in favor of the plaintiff for more than $50, was rendered in the justice's court, and the defendant entered an appeal in forma pauperis. When the case was called for trial in the superior court, counsel for the plaintiff made a motion to dismiss the appeal, on the ground that it did not show that it had ever been filed in the justice's court. On the hearing of this motion counsel for the defendant testified: "The case was tried on May 28, 1937, and I prepared this appeal on June 1, 1937, and marked it filed as of June 1, 1937, leaving a blank for the notary public and ex-officio J. P. to sign his name, and handed this appeal to him on June 1, 1937, and asked him to sign his name at the blank space. He accepted the paper, but refused to sign it unless the cost was paid, and refused to carry the appeal and papers to the clerk of the superior court for the October term, 1937, of the superior court, and did not file them into the superior court until March 11, 1938. I put this appeal into his hands on June 1, 1937, and did all I could to get the case appealed to the superior court." The judge sustained the motion and dismissed the appeal, and the defendant excepted.