Summerlin v. Tyler

DU POUT, J., delivered the opinion of the court. The question presented by the record.in this ease for our adjudication arises out of the provision of the statute imposing a limitation of time within which a party in a Justices’ Court may take an appeal to the Circuit Court, viz: whether within three days after the rendition of judgment, or within that time after the adjournment of the court ? The statute may be found in Thompson’s Digest, at page 474, and is in the following words, viz: “If either party shall be dissatisfied with the judgment of the Justice of the Peace, in any cause tried before him where the amount in controversy shall exceed the sum of ten dollars, such party may, within three days after the adjournment of the court at which the said judgment was rendered, demand an appeal to the Circuit Court of the county; and it shall be the duty of the said justice to grant said appeal upon the applicant’s paying the costs and giving bond and security for the eventual costs and condemnation money,” &c., &c. A careful reading of the statute is alone necessary to solve the question raised in the assignment of errors. It is very manifest that the appeal must be taken within three days after the adjournment of the court, and not after the date of the rendition of the judgment. In this case, the record furnishes the fact that the judgment was rendered on the 15th day of February, A. D. 1855, and that the appeal bond was given on the 20th day of the same month, or fine days after the date of the judgment. But it nowhere informs us at what date the court adjourned; and, in the absence of proof on that point, the legal presumption is that the justice did his duty in approving the appeal bond, and that the appeal was perfected within three days after the adjournment of the [720] court. In the absence of proof to the contrary, the legal presumption always is, that the officer has acted strictly within the line of his duty. To meet a supposed difficulty in the case, the counsel for the appellant argued, that the notification of an intention to take the appeal, made within the three days, is a .sufficient compliance with the requisition of the statute, and that the costs might be paid and the bond given at any time thereafter. "We do not coincide in this interpretation of thé statute. Our opinion is, that the appeal must be perfected within the three days by the payment of the costs and the actual tender of the bond. Let the judgment of the Circuit Court be .reversed, with directions to reinstate the cause and to proceed therein ac.gA’^ino’ fn law.