
    
      352.
    
    Livingston & Stewart v. King.
    Appeal, from Worth superior court — Judge Spence. December 13, 1906.
    Argued May 14,
    Decided June 20, 1907.
    
      Payton & Hay, for plaintiffs in error.
    
      Passmore & Tison, J. H. Tipton, contra.
   Hill, C. J.

1. Where an appeal is entered by a firm from a judgment in

a justice’s court to a jury in the superior court, and no appeal bond is given, but the individual members of the firm make affidavit that each member of said firm separately, “owing to his poverty, is unable to give the security required by law,” there is no error in dismissing the appeal on the ground that the affidavit does not show that the firm, is unable to give the bond required by law. Marlow v. Hughes Lumber Co., 92 Ga. 554, 17 S. E. 922; Kline v. Swift Specific Company, 118 Ga. 514, 45 S. E. 314.

2. The defect, being apparent on the face of the pleadings, could properly be taken advantage of by oral motion. It is only where the powers of the court are invoked touching matters that lie outside the pleadings that a written application or motion is required. Civil Code, § 5046; Smith v. Equitable Mortgage Co., 98 Ga. 240, 25 S. E. 423; McCook v. Crawford, 114 Ga. 337, 40 S. E. 225.

Judgment affirmed.  