DeFee v. Williams

114 Ga. App. 571 (1966)

151 S.E.2d 923

DEFEE, d/b/a AERIAL SURVEYS v. WILLIAMS, Clerk.

42449.

Court of Appeals of Georgia.

Decided November 7, 1966.

Larry DeFee, pro se, for petitioner.

Henry L. Williams, pro se, contra.

JORDAN, Judge.

Larry DeFee, d/b/a Aerial Surveys, applied to this court for issuance of a writ of mandamus against Henry L. Williams, 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 filed 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 *572 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 (1) (45 SE 692); Jones v. Smith, 83 Ga. App. 798, 800 (65 SE2d 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 forwith the record on appeal.

Mandamus absolute granted. Bell, P. J., and Eberhardt, J. concur.