Wear v. Killeen

Mr. Justice Breese delivered the opinion of the Court: The question presented by this record is one of practice in cases brought to the Circuit Court by appeal from a Justice of the Peace. Section 65 of Ch. 59 Title, “Justices and Constables,” provides, if upon the trial of any appeal, the bond required to be given shall be adjudged informal or otherwise insufficient, the party who shall have executed such bond, shall in nowise be prejudiced by reason of such informality or insufficiency, provided, he will, in a reasonable time, to be fixed by the court, execute and file a good and sufficient bond. (Scates’ Comp. 709.) The whole spirit of this act is of the most liberal character, evincing the great desire on the part of the Legislature, to sustain these domestic tribunals and their proceedings, to which such constant resort is had by our citizens, without regard to those technicalities which not unfrequently obstruct the course of justice. It is very manifest, from the phraseology of this section, that it was the design of the Legislature a party should not be injured or deprived of his status in the Circuit Court, when he brings his case there by appeal, by reason of any omission, ignorance or carelessness of the Hagistrate or attorney who might prepare the required bond. The statute is emphatic and imperative, if the bond shall be adjudged informal or otherwise insufficient, the party shall in nowise be prejudiced thereby, provided he will, in a reasonable time, to be fixed by the court, execute and file a good and sufficient bond. It is evident more than one step has to be taken by the court before the delinquent party can lose his position. First, the court is to adjudge the bond to be informal or insufficient; next, after such adjudication, the court is to fix a time within which a sufficient bond shall be executed and filed. It might be the day of the adjudication, or ten or more days thereafter, at any rate, a day is to be fixed by the court, when, if the appellant is delinquent, the Court would be authorized to dismiss the appeal. To dismiss an appeal in the first instance on motion for an alleged defect in the appeal bond, is consonant neither with the letter nor spirit of the statute. But this order does not go to the extent of adjudging the bond insufficient. The motion was to dismiss the appeal for want of a sufficient bond, and on this motion the Court dismissed the appeal, thus only inferentially deciding the bond defective. The proper practice in all such cases is, after the bond is adjudged informal or otherwise insufficient, to enter a rule against the appellant, that unless he executes and files a sufficient bond by a day to be named in the rule, the appeal will be dismissed. This would comply with the spirit and object of the statute. It is imperative in the Court, without any motion by appellant, whenever an appeal bond is adjudged informal or insufficient, to enter the rule we have indicated against the appellant, of which he is bound to take notice. This being done, and the rule disobeyed, then is the time for the Court to act summarily, by dismissing the appeal. The Court having erred in dismissing the appeal, without entering such rule, or giving the appellant a day on which to file a sufficient bond, the judgment dismissing the appeal must be reversed, and the cause remanded with instructions to reinstate the appeal on the docket, and fix a reasonable time within which the appellant shall execute and file a sufficient bond. Judgment reversed.