Hubbard v. Farmers Bank., 153 Ga. App. 497, 265 S.E.2d 845 (1980)

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Peter J. Rice, Jr., for appellee.Walton Hardin, for appellant.

The appellee bank, after foreclosing on certain property of Hubbard which had been put up as security for a loan, brought an action for confirmation of the sale. A jury trial ensued resulting in a verdict and judgment for the bank; Hubbard then filed motions for a new trial and for judgment notwithstanding the verdict. While they were pending, the bank filed a motion for supersedeas bond reciting that, due to defendant's inability to pay the original indebtedness which precipitated the foreclosure and the possibility of his insolvency pending the appeal, the plaintiff believes a bond to be necessary. The defendant was served on August 23, 1979, with a copy of the motion and rule nisi, which was heard on August 30 and judgment entered ordering the defendant to post a supersedeas bond in a stated amount by September 11 or suffer dismissal. Plaintiff and defendant were present at the hearing, both were represented by counsel, and the plaintiff's motion was supported by evidence, of which, however, there is no transcript in the record. The defendant filed a pauper's affidavit on the morning of September 11 in lieu of the bond. The court, refusing to act on the affidavit in view of the August 30 hearing and order treated the motions for new trial and j.n.o.v. as automatically dismissed and the defendant appeals.

The trial court has the authority in a proper case to dismiss appeals. Code 6-809 (b) gives the judge specific authority to do so where there is an unreasonable (inexcusable) delay in transmitting the record to the appellate court caused by failure of the appellant to pay costs or file a pauper's affidavit. In civil cases the notice of appeal acts as a supersedeas unless the appellee moves for a bond; Code 6-1002 provides that when this is done the trial court shall require a bond be given in an amount within his discretion. Presumably this makes the setting of a bond in some amount mandatory when the motion is properly presented and found to be reasonable. A pauper's affidavit complying with Code 6-1003 will relieve the appellant from this necessity, but may be traversed and, proved untrue. However, such affidavit even though untrue or frivolously filed, does not subject the defendant to the sanction of dismissal of his appeal. Spaulding Rich's, Inc., 144 Ga. App. 467, 469 (241 SE2d 584) (1978). The remedy for failure to file or frivolously filing a pauper's affidavit is not dismissal of the appeal but divestiture of the protection of the supersedeas. It "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." DeFee v. Williams, 114 Ga. App. 571, 572 (151 SE2d 923) (1966), and see Lake Spivey Parks, Inc. v. Jones, 118 Ga. App. 60 (162 SE2d 801) (1968); Byers v. Lieberman, 126 Ga. App. 582 (1) (191 SE2d 470) (1972) et cit. It follows that failure to comply with an order to post a supersedeas bond has the sole effect of removing any supersedeas features of the appeal, and leaves the appellee at liberty, if he chooses to do so, to make whatever levy of execution or other action may be available to collect his debt, always remembering that he does so at his peril if the judgment is reversed on appeal.

We approve the reasoning of this court in Spaulding v. Rich's, Inc., 144 Ga. App. 467, supra, at page 469, that the legislative change from no provision for traverse of a pauper's affidavit to the present rule did not result in "the other extreme of providing the sanction of dismissal of the appeal if the pauper's affidavit was shown to be frivolous." A judgment of the trial court, after a hearing where evidence is presented, is final and nonreviewable both as to payment of costs and giving of bond. Code 24-3413. Grace v. Caldwell, 231 Ga. 407 (4) (202 SE2d 49) (1973). The clerk of court of is not required to copy and forward the record in an appealed case until the costs are paid or a valid pauper's affidavit submitted, and the prevailing party is free to levy immediately on whatever assets of the appellant may become available. Failure to pay costs in the trial court or to file a valid pauper's affidavit which results in unreasonable delay in forwarding the record to the appellate court is a ground for dismissal in the trial court under Code 6-809 (b) and this is the meaning of the statement in the last paragraph of the Spaulding case that where a pauper's affidavit is successfully traversed, and the defendant then fails to pay the costs the delay subjects the appeal to dismissal. It should not be read as requiring both payment of costs and posting of the bond, since the Code section refers only to nonpayment of costs as this inordinately delays the appeal.

We are aware that the chronology of this case differs from that outlined in Code Chapter 6-10. However, the purpose of a traverse to a pauper's affidavit is simply to allow a hearing on the ability to pay. In this case the hearing originated via a rule nisi attached to the appellee's motion for bond, and the same result has been accomplished. We thus treat the case as though the hearing had been initiated by a traverse of the pauper's affidavit (which was in fact filed in the trial court) rather than by a rule nisi on the motion to set bond. Further since there is a recital that the plaintiff offered evidenced and that all parties were present, we would, if the decision were reviewable, conclude from the lack of a transcript of evidence that that which was offered was sufficient for the purpose. This view of the case places it within the purview of the language discussed in Spaulding v. Rich's, supra.

Judgment reversed and case remanded to the trial court with direction to enter a final judgment on the merits of the motions for new trial and judgment notwithstanding the verdict. Birdsong and Sognier, JJ., concur.

1980

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