Shepherd v. Dodd

Per Curiam. Appeal from an order of the Board of Commissioners vacating a highway. The record states that the commissioners granted an appeal, upon bond being filed, in the sum of <$100, with Israel loring, security. The bond was delivered to the auditor, as required by the commissioners; he filed it, and made out the transcript for the appeal, &c. In the Circuit Court a motion was made, and sustained, to dismiss the appeal, for the reason that the appeal bond was not taken and approved by the auditor, as the statute requires, but by the commissioners. Immediately afterward the appellant moved for leave to prove, by parol, “ that said appeal bond was accepted and filed by the auditor in his office, and upon which bond, so filed, he made out a transcript and filed the same in the clerk’s office, which proof the Court refused'to hear.” The Court may have refused to hear this evidence because not offered till after the appeal had been dismissed, deeming it to be then too late. But the Court might have refused to hear it on another ground, viz: that it would not show any thing beyond what already appeared by the record. That showed that the auditor had received and filed the bond, transmitted the appeal, &c.; but neither the record, nor the proposed evidence cleared up the doubt, whether the auditor had performed these acts, because the commissioners had approved the bond, or because he had approved it himself, as an act of his own judgment, as he was bound to do to make it operative. The point is a pretty close one, but as the Court below, looking at the facts as they occurred, has dismissed the appeal, we think it safe to affirm its judgment. The judgment is affirmed, with costs. [218] That the filing of the bond by the auditor was prima fade evidence that he had approved it. 2 Black. 351; Lacy v. Fairman, 7 id. 558.