Brown v. Keirns

Treat, C. J. The court should have dismissed the appeal. The bond was in the penalty of $54.62, and* it recited a judgment for $27.62. The penalty was, therefore, less than twice the amount of the judgment appealed from. We understand the statute as requiring an appeal-bond to be in the penalty of at least double the amount of the judgment. Rev. St. ch. 59, § 59. The deficit in this case may seem trifling, but the bond is nevertheless not a statutory obligation. 1 If a departure from the statute could be tolerated in the present case, it would have to be allowed in cases of more substantial defect, and the result would be to vest clerks and justices with a mere discretion as to what should be the penalty of an appeal-bond. It was decided in Smith v. Whittaker, 11 Ill. 417, that a penalty in a larger sum than twice the amount of the judgment will not vitiate an appeal-bond; and it was intimated, in that case, that a penalty in more than double the judgment may properly be required where it is necessary for the full indemnity of the appellee. The report of that case should have stated that the bond in question was more than twice the amount of the judgment appealed from; and what was there said must be understood with reference to such a bond. But there is no authority for holding that an appeal-bond is a less penalty than double the judgment, can be regarded as a compliance with the statute. On the contrary, this court has often expressed the opinion, that the appellee has a right to insist that the bond shall strictly conform to the statute. Young v. Mason, 3 Gilm. 55; Sharp v. Bedell, 5 Id. 88. The rule cannot operate harshly upon an appellant, for he is permitted to avoid the effect of a motion to dismiss his appeal for the insufficiency of the bond, by the execution of a new bond. If he will not thus perfect the appeal when the objection is made, he must suffer the consequences resulting from his negligence. The judgment is reversed. Judgment reversed.