Carr v. McGovern

The opinion of the court was delivered, November 14th 1870, by Thompson, C. J. — There was no appeal taken in this case by the plaintiffs in error from the award of arbitrators against them in the court below, in fact or in law. There was no recognisance taken and filed, such as the Act of Assembly requires, the appellant’s own recognisance only being taken without bail, and the costs taxed all remaining unpaid, with the exception of a small fraction, of $1.50, out of $22.41 taxed on the record. It is, perhaps, true that if the only objection had been to the defective recognisance, the court might have had authority to allow it to be perfected, and this would have been going the full length of their power, to say the least of it. But we see nothing like a proposition looking to this by the appellants. They complain of the court for quashing the appeal as it stood, without any offer to amend or perfect the recognisance. The court could not say there was a good appeal as the record stood, and this was all they had [459] to do with. But the want of payment of the costs taxed was an incurable defect. It could not be cured by charging the costs over to counsel. The costs taxed must be paid in cash, so we said in Ellison v. Buckley, 6 Wright 281. The note of the party will not do, nor the assumption of his counsel. The payment of the taxed costs is a condition precedent to a valid appeal. Where they are not taxed, the party is in no default in not paying them. There the court enforces payment when taxed subsequently to the appeal by attachment; but when taxed before appeal, and not paid, the court quashes the appeal for the non-performance of one of the conditions of appeal. The negligence or want of knowledge of the officer does not condone the errors of the party in failing to do what the law requires in order to perfect the appeal. Any amount unpaid, coming within the principle of de, minimis, would undoubtedly not be allowed to set aside an appeal; but that is not the case in hand. The great body of the costs remained unpaid, and this of itself justified the court in striking off the appeal, even if the other ground had not existed. Judgment affirmed.