Cannon v. Sheffield

Warner, Chief Justice. This was a motion to dismiss an appeal from a justice’s court, on two grounds. First, because the appeal was not sent up and filed in the clerk’s office ten • days before the next term of the superior court, but only seven days. Second, because the appeal was entered without the. appellant having given bond and security. The court sustained the motion and dismissed the appeal, whereupon the appellant excepted. 1. The first ground is disposed of by the decision of this court, at the present term, in the case of Robinson vs. Medlock (not yet reported), in which the dismissal of the appeal, on that ground, was held to be error. 2, 3. It appears from the record and bill of exceptions, 104 tliat the defendant was sued as administrator, and judgment rendered against the assets of the intestate in bis hands only, on the 30th of November, 1876, and on the same day lie entered his appeal as administrator, without giving security. On the 25th of February, 1877, after the appeal had been entered, the judgment was amended, by order of the justice, as follows: “ to b'e levied of the goods and chattels, lands and tenements of the deceased, in his hands to be administered, if to be found, and if not to be found, then to be levied of the personal goods and chattels, lands and tenements of the defendant, F. A. Cannon, now entered nunc pro PitnoP As the judgment stood against the defendant as administrator at the time he entered his appeal therefrom, he was not required to give security in order to obtain it. Having ob-' tained an appeal from the judgment of the justice according to law, his legal right thereto could not be defeated by the subsequent amendment of the judgment, even if the justice had the legal authority to amend the judgment as he did, pending the appeal. "What legal authority had the justice to interfere with the judgment, after' an appeal had been taken therefrom to the superior court? The case was no longer pending in .the justice’s court after the appeal was entered, and the judgment rendered by the justice was not a final judgment in the case. In our1 judgment, the court erred in dismissing the appeal,on the statement of facts disclosed in the record. Let the’judgment of the court below be reversed.