Hollensbe v. Thomas

Hanna J. Thomas sued Edward and John Hollensbe before a justice, and had judgment on the 16th day of February, 1863. On the 14th of March, following, the agent of said Hollensbes filed an appeal bond, signed by one Clark, and prayed an appeal, which was granted and the bond approved by the justice. Thus far the transcript shows. It is shown by the oral testimony of the justice, taken on a motion to dismiss the appeal, that afterwards, but within the time limited for taking an appeal, the justice, conceiving that the bond should have the name of one of the principals to it, sent it to John Hollensbe, who signed it immediately, but did not return it to the justice until after the expiration of said time. The Court dismissed the appeal. Upon affidavits showing these facts, and also the fact that Edward did not know of the action, 'of the justice in withdrawing said bond from among the papers of the case, until after said limited time, and fhat the defendants had merits in the defence; the Court ordered an appeal to be permitted. In accordance with said order, a bond was filed and the transcript sent up. A motion was again made to dismiss the appeal as to said John, on the ground that by -receiving and retaining said first bond, until beyond the time limited for an appeal, he had [376] waived any right he had to an appeal. The motion was •sustained, the appeal, as to time, dismissed, and judgment against him for costs. Charles N. Shook, for the appellant. He now prosecutes this appeal. The questions presented are upon those rulings of the Court in dismissing. We are of opinion that, the Court erred in ordering the first dismissal. When the appeal was prayed, the bond filed •and approved by the justice, the party was entitled to his ■appeal, and the justice’s duty was to make out and file a transcript in the proper office of the Court to which the appeal was prayed. The fact that the justice mistook his ■duty on the legal rights of the parties, could not change those rights. The withdrawal of the bond by said justice for one purpose could not divest the right, or affect the validity thereof in any different manner than if he had withdrawn it for some other and different purpose, because such withdrawal for any purpose was unauthorized and did not affect its validity. Per Curiam. The judgment is reversed, with costs. Cause remanded.