TITLE 5 APPEAL AND ERROR

Section 3. Appeals to Superior or State Court, 5-3-1 through 5-3-31.

ARTICLE 2 PROCEDURE

5-3-22. Payment of costs prerequisite to appeal; affidavit of indigence; dismissal for nonpayment following court order; supersedeas bond.

No appeal shall be heard in the superior or state court until any costs which have accrued in the court, agency, or tribunal below have been paid unless the appellant files with the superior or state court or with the court, agency, or tribunal appealed from an affidavit stating that because of indigence he or she is unable to pay the costs on appeal. In all cases, no appeal shall be dismissed in the superior or state court because of nonpayment of the costs below until the appellant has been directed by the court to do so and has failed to comply with the court's direction.
Filing of the notice of appeal and payment of costs or filing of an affidavit as provided in subsection (a) of this Code section shall act as supersedeas, and it shall not be necessary that a supersedeas bond be filed; provided, however, that the superior or state court upon motion may at any time require that supersedeas bond with good security be given in such amount as the court may deem necessary unless the appellant files with the court an affidavit stating that because of indigence he or she is unable to give bond.

(Laws 1799, Cobb's 1851 Digest, p. 494; Code 1863, § 3536; Code 1868, § 3559; Code 1873, § 3616; Code 1882, § 3616; Civil Code 1895, § 4458; Civil Code 1910, § 5003; Code 1933, § 6-105; Ga. L. 1972, p. 738, § 4; Ga. L. 1995, p. 10, § 5; Ga. L. 2009, p. 647, § 1/HB 324.)

JUDICIAL DECISIONS

General Consideration

Purpose of payment.

- Payments of costs in order to carry appeal is primarily intended to protect court officers. Hilderbrand v. Housing Auth., 109 Ga. App. 297, 136 S.E.2d 24 (1964).

Former Civil Code 1895, § 4464 (see O.C.G.A. § 5-3-24) formed an exception to former Civil Code 1895, § 4458 (see O.C.G.A. § 5-3-22). Bryson v. Scott, 111 Ga. 196, 36 S.E. 619 (1900).

Cited in Planters' & Miners' Bank v. Hudgins, 84 Ga. 108, 10 S.E. 501 (1889); Lewis, Leonard & Co. v. Maulden, 93 Ga. 758, 21 S.E. 147 (1894); Chapple v. Tucker, 110 Ga. 467, 35 S.E. 643 (1900); Deiter v. Ragsdale, 120 Ga. 417, 47 S.E. 942 (1904); Hays v. Eubanks, 125 Ga. 349, 54 S.E. 174 (1906); Roberts v. Napier Bros., 126 Ga. 693, 55 S.E. 914 (1906); Potts v. City of Atlanta, 140 Ga. 431, 79 S.E. 110 (1913); Whitson v. McNutt & Co., 26 Ga. App. 281, 105 S.E. 861 (1921); Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317, 119 S.E. 25 (1923); Goodwyn v. Veal, 50 Ga. App. 657, 179 S.E. 126 (1935); Trowbridge v. Dominy, 92 Ga. App. 177, 88 S.E.2d 161 (1955); Kendrix v. Superior Egg Co., 99 Ga. App. 575, 109 S.E.2d 59 (1959); Smith v. Huckabee Properties, Inc., 111 Ga. App. 451, 142 S.E.2d 320 (1965); Taylor v. Public Convalescent Serv., 245 Ga. 805, 267 S.E.2d 242 (1980); Hawn v. Chastain, 154 Ga. App. 609, 269 S.E.2d 50 (1980).

Costs

Costs within meaning of former Code 1933, § 6-105 (see O.C.G.A. § 5-3-22) include all costs accruing in case up to entry of appeal. Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935).

Failure of clerk to exact costs when the clerk had recorded appeal will not operate as dismissal. Crawford v. Cate, 20 Ga. 69 (1856); Lyner v. Jackson, 20 Ga. 773 (1856); Fain v. Fain, 179 Ga. App. 285, 346 S.E.2d 96 (1986).

"Direct" means to give an order or command, not merely to advise or notify. Therefore, when the appellant was notified by the probate court of the obligation to pay court costs, but was not directed to pay costs by the court, the appellant's appeal should not have been dismissed for nonpayment of costs. Fain v. Fain, 179 Ga. App. 285, 346 S.E.2d 96 (1986).

Successful appellant cannot secure a refund of costs. Abrams v. Lang, Sons, 60 Ga. 218 (1878).

When an appeal is withdrawn, judgment may be entered for costs but not amount due on execution. Bryan v. Simpson, 92 Ga. 307, 18 S.E. 547 (1893).

In a dispossessory proceeding, because the case did not involve the tenant's failure to pay costs in the magistrate court, and, instead, involved the tenant's failure either to pay the filing fee owed in superior court or file an affidavit of poverty in that court, O.C.G.A. § 5-3-22 provided no basis for affirming the trial court's order denying the tenant's application to proceed in forma pauperis. Freeman v. The Park at Hairston Apartments, 341 Ga. App. 321, 800 S.E.2d 21 (2017).

Supersedeas Bond

Supersedeas bond not notice of appeal.

- While a notice of appeal serves as supersedeas unless a bond is ordered by the court, a supersedeas bond is not, of itself, a notice of appeal. A bond may be required for security as a prerequisite to bringing an appeal but the bond does not, itself, commence the appeal. Sharpe v. State, 198 Ga. App. 381, 401 S.E.2d 586 (1991).

Failure to file supersedeas bond is no ground for dismissing appeal. Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979).

Failure to file supersedeas bond is no ground for dismissing appeal, even when the superior court finds such failure is willful. Hawn v. Chastain, 246 Ga. 723, 273 S.E.2d 135 (1980).

Effect of failure to file supersedeas bond.

- Failure to file supersedeas bond simply means that judgment of trial court may be enforced. Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979).

Intent of General Assembly that appeals not be dismissed for failure to post supersedeas bonds is clearly shown by subsection (a), which expressly authorizes dismissal of an appeal for nonpayment of costs accrued in a lower tribunal after the appellant has been directed by superior court to pay such costs. Hawn v. Chastain, 246 Ga. 723, 273 S.E.2d 135 (1980).

No authorization for dismissal for failure to file supersedeas bond.

- Ga. L. 1966, p. 609, § 41 (see O.C.G.A. § 9-11-41(b) not authorize dismissal of an appeal to superior court for failure to comply with order requiring supersedeas bond pursuant to subsection (b) of former Code 1933, § 6-105 (see O.C.G.A. § 5-3-22). Hawn v. Chastain, 246 Ga. 723, 273 S.E.2d 135 (1980).

Dispossessory actions.

- Subsection (b) of O.C.G.A. § 5-3-22 is applicable to appeals relating to dispossessory actions. Walker v. Crane, 216 Ga. App. 765, 455 S.E.2d 855 (1995).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, §§ 421, 583, 851. 14 Am. Jur. 2d, Certiorari, § 53 et seq.

C.J.S.

- 4 C.J.S., Appeal and Error, §§ 427 et seq., 535.

ALR.

- Liability of surety in appeal bond where there was no supersedeas for costs in court below, 12 A.L.R. 721.

Validity of judgment entered on appeal or supersedeas bond without previous notice and opportunity to be heard, 86 A.L.R. 308.

Amount named in appeal or supersedeas bond as the maximum limit of sureties' liability or as a limitation of the amount which they undertake shall be paid on the judgment appealed from, 87 A.L.R. 257.

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.

Supersedeas stay, or bail upon appeal in habeas corpus, 143 A.L.R. 1354.

When appeal is or is not deemed to have been prosecuted "with effect" or "to effect" within condition of supersedeas bond, 163 A.L.R. 410.

Attorneys' fees paid by appellee in resisting unsuccessful appellate review as damages recoverable on appeal bond, 37 A.L.R.2d 525.

Necessity that person acting in fiduciary or representative capacity give bond to maintain appellate review proceedings, 41 A.L.R.2d 1324.

Check or money as meeting requirement of appeal bond, 65 A.L.R.2d 1134.

Taxable costs and disbursements as including expenses for bonds incident to steps taken in action, 90 A.L.R.2d 448.

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