McKoy v. Allen

Mr. Justice Breese delivered the opinion of the Court: This was an action of forcible entry and detainer, brought before a justice of the peace in Christian county, and taken by appeal to the Circuit Court. In that court, the appellee, Allen, entered his motion to dismiss the appeal for insufficiency of the bond, which motion was allowed, and this is assigned here as error. The statute provides, if either party in a case of forcible entry and detainer, shall feel aggrieved by the verdict of the jury or the decision of the justice on any trial, etc., he or she may have an appeal to the Circuit Court, to be obtained in the same manner and tried in the same way as appeals from justices of the peace in other cases ; and there shall be inserted in the appeal bond, a clause conditioned for the payment of all rents becoming due, if any, from the commencement of the suit until the final determination thereof. Scates’ Comp. 522. The penalty of the bond in this case was three hundred dollars, with this condition : “ That whereas the said Gerard B. Allen did, on the 23rd of March, 1864, before L. L. Clark, a justice of the peace, recover a judgment against the above bounden Henry McKoy and Eli Jacobs in said proceedings for the sum of-dollars and cents, and costs of suit, from which said judgment the said McKoy and Jacobs shall prosecute said appeal with effect, and shall pay whatever judgment may be rendered by the court upon dismissal or trial of said appeal, and shall pay whatever rents, if any, upon the property in said suit decided to be in plaintiff, or that he be entitled to possession, then the above obligation to be void, otherwise to remain in full force and effect.” The defects in this bond are so very apparent that it can hardly be regarded as a bond in the case. It is not a substantial compliance with the statute. The kind of action is not described in the bond, nor the amount or substance of the recovery. A very necessary and most important requirement of the statute is wholly omitted, that is, the provision “ for the payment of all rents becoming due, if any, from the commencement of the suit until the final determination thereof.” The appellant insists it was not competent for the appellee to make this objection, as he was in court by his appearance, and that the mode in which a suit is brought into court is of no importance provided the defendant appears. As a general principle, this maybe so in all cases where the court has original jurisdiction of the subject-matter. If it has such jurisdiction, appearance cures defective and even void process. Where it has not such jurisdiction, consent cannot give it by appearing and pleading. In this case, the Circuit Court had no original jurisdiction of the action of forcible entry and detainer, but appellate only. Ginn v. Rogers, 4 Gilm. 131. Consequently, it was the imperative duty of the appellant to bring his case properly into the Circuit Court, by executing such a bond as the statute requires. Hot having done so, and having made no motion to amend his defective bond, the Circuit Court could do no otherwise than allow the motion to dismiss the appeal. The cases referred to by appellants’ counsel, are all cases in which the Circuit Court had original jurisdiction of the subject-matter of the action. The judgment of the Circuit Court is affirmed. Judgment affirmed.