GA Code § 5-6-47 (2021)
2021 Georgia Code|Title 5 - Appeal and Error|Chapter 6 - Certiorari and Appeals to Appellate Courts Generally|Article 2 - Appellate Practice|§ 5-6-47. Operation of Notice of Appeal and Affidavit of Indigence as Supersedeas in Civil Cases; Procedure for Contests as to Truth of Affidavit

  In all civil cases where the party taking an appeal files an affidavit stating that because of his indigence he is unable to pay costs or to post a supersedeas bond, if any, as may be required by the trial judge as provided in Code Section 5-6-46, the notice of appeal and affidavit of indigence shall act as supersedeas.   Any party at interest or his agent or attorney may contest the truth of the affidavit of indigence by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the trial court under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.    (Ga. L. 1965, p. 18, § 9; Ga. L. 1966, p. 723, § 1.)   Cross references.   - Supersedeas, Rules of the Supreme Court of the State of Georgia, Rule 12.   Filing notice of appeal and cross appeal, Rules of the Supreme Court of the State of Georgia, Rule 38.   Supersedeas, Rules of the Court of Appeals of the State of Georgia, Rule 50.   Law reviews.   - For article, "The Appellate Procedure Act of 1965," see 1 Ga. St. B.J. 451 (1965). For article, "1966 Amendments to the Appellate Procedure Act of 1965," see 2 Ga. St. B.J. 433 (1966).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the provisions, decisions under former Civil Code 1910, § 6166 and former Code 1933, § 6-1002, as it read prior to revision by Ga. L. 1965, p. 18, § 9 are included in the annotations for this Code section.    Truth of paupers affidavit must be attacked in court below, not in Court of Appeals. Mark Trail Campgrounds, Inc. v. Field Enterprises, Inc., 140 Ga. App. 608, 231 S.E.2d 468 (1976).    Purpose of traverse to pauper's affidavit is simply to allow hearing on ability to pay. Hubbard v. Farmers Bank, 153 Ga. App. 497, 265 S.E.2d 845 (1980).   Effect of successful traverse of pauper's affidavit.    - When appellant's pauper's affidavit is successfully traversed, appellant is required to pay court costs and provide such supersedeas bond as is appropriate to the circumstances, and upon failure to comply therewith authorizes dismissal. Spaulding v. Rich's, Inc., 144 Ga. App. 467, 241 S.E.2d 584 (1978).    Remedy for failure to file or frivolously filing pauper's affidavit is not dismissal of appeal but divestiture of the protection of supersedeas. Hubbard v. Farmers Bank, 153 Ga. App. 497, 265 S.E.2d 845 (1980).   Finding that party not indigent not reviewable.    - Trial court's finding that a party was able to pay the costs of preparing a record is not reviewable even though no opposing affidavit challenging the party's affidavit of indigency was filed. Saylors v. Emory Univ., 187 Ga. App. 460, 370 S.E.2d 625, cert. denied, 187 Ga. App. 908, 370 S.E.2d 625 (1988).    Ordinarily, under O.C.G.A. §§ 5-6-47(b) and9-15-2(a)(2), a trial court's findings concerning a party's indigency are not reviewable in cases when the affidavit of indigency has been traversed by an opposing affidavit. Quaterman v. Weiss, 212 Ga. App. 563, 442 S.E.2d 813 (1994).    In a breach of contract suit brought by an oncologist against a corporation, the corporation's failure to submit an opposing affidavit to the oncologist's pauper's affidavit did not alter the fact that the trial court's findings regarding the oncologist's indigency were not subject to appellate review. Under O.C.G.A. §§ 5-6-47(b) and9-15-2(a)(2), a trial court's ruling regarding indigency was final and not subject to appellate review; the proper forum for determining the truth of a pauper's affidavit was in the trial court. Mitchell v. Cancer Carepoint, Inc., 299 Ga. App. 881, 683 S.E.2d 923 (2009).    Insolvent corporation may make a pauper affidavit. Brunswick Timber Co. v. Guy, 52 Ga. App. 617, 184 S.E. 426 (1936) (decided under former Code 1933, § 6-1002).   Must contain statement that inability to pay is due to poverty.    - It is essential to sufficiency of pauper's affidavit that it include statement that inability of affiant to pay costs is "because of his poverty," and, being without such statement, neither affiant as plaintiff in error nor the plaintiff's attorneys will be relieved from payment of costs. Stevens v. Bibb Mfg. Co., 45 Ga. App. 282, 164 S.E. 221 (1932) (decided under former Civil Code 1910, § 6166).   Failure to conduct hearing on prisoner's pauper's affidavit.    - Trial court erred by failing to conduct a hearing on a prisoner's claim of indigence as the plain language of O.C.G.A. § 9-15-2(b) required a hearing before the court could order costs to be paid and there was nothing in the statute that allowed the court, on the court's own, to inquire into the truth of a pauper's affidavit to order the payment of court costs without a hearing. Lee v. Batchelor, 345 Ga. App. 559, 814 S.E.2d 416 (2018).   Emergency motion for supersedeas required.    - Claim that a tenant's notice of appeal and affidavit of poverty did not act as a supersedeas of an order issuing a landlord a writ of possession was rejected as it was not a matter reflected in the appellate record and was something that should be handled by an emergency motion for supersedeas; further, the tenant did not file an enumeration of errors and brief and no extension had been requested or granted. Hughley v. Habra, 277 Ga. App. 138, 625 S.E.2d 531 (2006).   Error to dismiss appeal.    - Trial court's dismissal of an appeal from a summary judgment dismissing a wrongful death claim brought by four children, due to the failure of two of the children to pay costs or submit affidavits of indigency, was in error as to two of the children who filed affidavits of indigency; assuming the children filed true affidavits of indigence (O.C.G.A. § 9-15-2(a)(2), (b)), the children had rights to appeal from the dismissal of the children's proportionate shares of the wrongful death case as: (1) the wrongful death claim was not jointly in all the children or in none of the children; and (2) originally, each child had a separate claim for one-fourth of the value of the decedent's life. Mapp v. We Care Transp. Servs., 314 Ga. App. 391, 724 S.E.2d 790 (2012), cert. denied, No. S12C1111, 2012 Ga. LEXIS 660 (Ga. 2012).    Cited in Fowler v. Stansell, 221 Ga. 630, 146 S.E.2d 726 (1966); Green v. Fuller, 223 Ga. 204, 154 S.E.2d 220 (1967); Tootle v. Player, 225 Ga. 431, 169 S.E.2d 340 (1969); McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975); Potts v. State, 236 Ga. 230, 223 S.E.2d 120 (1976); Chambliss v. Roberson, 164 Ga. App. 579, 298 S.E.2d 550 (1982); Parks v. Atlanta Pub. Sch. Sys. Bd. of Educ., 168 Ga. App. 572, 309 S.E.2d 645 (1983); Rosemond v. Prudential Property & Cas. Ins. Co., 170 Ga. App. 189, 316 S.E.2d 541 (1984); Ball v. Duncan, 174 Ga. App. 341, 330 S.E.2d 160 (1985); Plumides v. American Engines & Transmissions, Inc., 227 Ga. App. 885, 490 S.E.2d 552 (1997).   RESEARCH REFERENCES   C.J.S.   - 4 C.J.S., Appeal and Error, § 427 et seq., 453.   ALR.    - Reversal as affecting purchase of property involved in suit, pending appeal without supersedeas, 36 A.L.R. 421.    Right of indigent defendant in criminal case to aid of state as regards new trial or appeal, 100 A.L.R. 321; 55 A.L.R.2d 1072.    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.   Right to sue or appeal in forma pauperis as dependent on showing of financial disability of attorney or other nonparty or nonapplicant, 11 A.L.R.2d 607.   Right of indigent defendant in criminal case to aid of state as regards new trial or appeal, 55 A.L.R.2d 1072.   Determination of indigency of accused entitling him to transcript or similar record for purposes of appeal, 66 A.L.R.3d 954.