De Laval Separator Co. v. Cutts

Anderson, J., delivered the opinion of the court. Appellant, the De Laval Separator Company, brought this action in the court of a justice of the peace of Winston county against appellee, J. E, Cutts, on an open account. There was a judgment by default in that court, and an appeal therefrom by the appellee to the circuit court, in which there was a trial on the pleadings and evidence resulting in a verdict, and judgment over for appellee on a set-off filed by appellee for the first time in *381 the circuit court. From that judgment, appellant prosecutes this appeal. The judgment in favor of appellant in the court .of the justice of the peace, from which appellee appealed to the circuit court, was for the sum of one hundred sixteen dollars and thirty-five cents. Appellee, in prosecuting that appeal, gave a bond in the penalty of only two hundred dollars, instead of executing a. bond in double the amount of the judgment appealed from and all costs accrued or likely to accrue in the case, as provided by section 83, Code of 1906 (chapter 203, Laws of 1912; Hemingway’s Code, section 63). Upon that ground appellant made a motion to dismiss the appeal, which motion the circuit court overruled. This action of the court is assigned by appellant as' error. The judgment was for one hundred sixteen dollars and thirty-five cents. It is therefore apparent at once that the appeal bond was insufficient, although such a bond in less than the minimum sum required by law is not void, and may be amended by leave of court. Denton v. Denton, 27 So. 383, 77 Miss. 375. Nevertheless, on motion to dismiss on that ground,, unless the appellant shall ask leave of the court to give a bond in a sufficient amount, the motion should be sustained, and the appeal dismissed. No such leave was asked by appellee, as appears from the record. Appellant’s motion to dismiss was simply overruled. This was error. The appeal should have been dismissed, unless appellee asked leave to give a sufficient bond. As appears from the record, probably other errors were committed by the trial court; but they were questions not raised on the trial, and therefore cannot be raised here. We find no- error in the giving; or refusing of instructions. Reversed cmd remanded.