Yarborough v. . Giles

It may be done; the act is express.

The sureties are not in court. If a judgment is now entered against them, it will be to condemn them unheard. The law which says this is a harsh one, and should be construed with all possible strictness according to the letter. The act says, when any appeal prayed shall not be prosecuted, or the court before whom the appeal may be determined shall affirm the judgment, then shall the appellant be decreed to pay to the appellee 12 1/2 per cent interest from the passing of the judgment in the county court by which such appeal may have been granted; and the bonds taken for prosecution of appeals with effect should hereafter make part of the records sent up to the Superior Court, *Page 358 on which judgment may be instanter entered up against the appellant and his securities. The sentences respecting the 12 1/2 per cent and that of entering up judgment against the sureties were conjoined by the particle and. Judgment may be entered instanter against the sureties where the appeal is not prosecuted, or where the judgment is affirmed. A judgment is not affirmed where there is a new trial in the court above, for then that court gives a new judgment. The judgment of the county court is only affirmed when the appeal is not prosecuted, and the (454) appellee for that cause moves for an affirmation of the judgment below. That is not the present case. The appeal has been prosecuted.

I think there are two cases specified in the act that entitle the plaintiff to enter up judgment: first, if the appeal shall not be prosecuted; secondly, if the judgment shall be affirmed; and that the affirmation of judgment here spoken of intends a judgment in the Superior Court, obtained for the same or a greater sum than the judgment in the county court. The affirmation here spoken of is not meant of an affirmation upon motion for want of prosecuting the appeal; for then the latter part of the sentence means the same as the former part, when it is evident from their disjunction by the Assembly that they were meant to express different circumstances.

I am of opinion the act does not necessarily embrace the case now before the Court. I am willing, however, a notice may be issued to show cause.

So the plaintiff did not obtain judgment instanter.