The security, if any, of the party appealing shall be bound for the judgment on the appeal; and, in case the security is compelled to pay off the debt or damages for which judgment is entered in the case, he shall have recourse only against the party for whom he became security.
(Laws 1823, Cobb's 1851 Digest, p. 498; Laws 1839, Cobb's 1851 Digest, p. 500; Code 1863, § 3541; Code 1868, § 3564; Code 1873, § 3621; Code 1882, § 3621; Civil Code 1895, § 4463; Civil Code 1910, § 5008; Code 1933, § 6-112.)
Law reviews.- For survey article on constitutional law, see 34 Mercer L. Rev. 53 (1982).
JUDICIAL DECISIONS
First part of section provides for liability when principal appeals, whether or not surety appeals. Beall v. Cochran, 18 Ga. 38 (1855); Barnett v. Travis, 96 Ga. 760, 22 S.E. 314 (1895); National Sur. Co. v. White, 21 Ga. App. 471, 94 S.E. 589 (1917).
Second clause of section grants right of subrogation against principal. National Surety Co. v. White, 21 Ga. App. 471, 94 S.E. 589 (1917).
Charging estate of security.
- Plaintiff, by scire facias, may charge estate of security on appeal with amount of final judgment rendered against original party. Bank of Charleston v. Moore, 6 Ga. 416 (1849).
Plaintiff may charge estate of security with amount of judgment by entry of judgment nunc pro tunc. Mayo v. Kersey, 24 Ga. 167 (1858).
Surety not subject for breach of bond when trial cannot be had as to appellant.
- Condemnation money for which surety on appeal is liable is that which is recovered in case on appeal trial. If, by reason of injunction, death, or other cause, no trial of case is or can be had as to appellant, the surety is not subject for a breach of bond. Planters' & Miners' Bank v. Hudgins, 84 Ga. 108, 10 S.E. 501 (1889).
Cited in Satzky v. King, 115 Ga. 948, 42 S.E. 233 (1902); Bennett v. Farkas, 126 Ga. 228, 54 S.E. 942 (1906); Touchton v. Stewart, 222 Ga. 455, 150 S.E.2d 643 (1966).
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Appellate Review, § 231 et seq.
ALR.
- Failure of sureties on appeal bond to justify after exception to their sufficiency and consequent dismissal of appeal, as releasing them from liability, 96 A.L.R. 1371.
Liability on supersedeas bond which was legally insufficient to effect stay, where enforcement of judgment was in fact suspended, 120 A.L.R. 1062.
Condition of bond on appeal not in terms covering payment of money judgment, as having that effect by implication or construction, 124 A.L.R. 501.
Attorneys' fees paid by appellee in resisting unsuccessful appellate review as damages recoverable on appeal bond, 37 A.L.R.2d 525.