McKeever v. Horine

Lowe, C. J. Suit before a magistrate on a note of band, upon which a judgment was rendered for plaintiff. The magistrate’s transcript shows, that on the 5th of June, 1860, within twenty days from the rendition of the judgment, the defendants executed and filed with the justice an appeal bond which was approved. The appeal was not taken upon the day on which the judgment was rendered, and it does not appear that any notice of the appeal was ever served upon the plaintiff. On the 1st day of September following, before any transcript was made out or sent up, defendants notified the magistrate that they withdrew their appeal, and that plaintiff might have satisfaction of his judgment by execution. On the 6th of October following, an execution issued, and was returned by the constable, nulla bona, on the 2d of November, 1860. On the 20th of March, 1861, plaintiff procured a transcript of said judgment to be filed with the clerk of the-District Court, and afterwards, on the second day of the term, by his counsel, moved that the judgment below be affirmed, because the docket fee had not been paid, agreeably to the rules of the court, by the appellant. This motion was overruled, and the appeal dismissed at plaintiff’s costs. This ruling is claimed to be error, under the state of facts mentioned. Whenever an appeal bond or recognizance is filed in the office of the justice with approved sureties, and within the time limited for taking appeals, the same is perfected, and the magistrate’s action over the cause should be suspended, beyond what is necessary to send up a transcript of the pro? ceedings. If however, before he does this, the appellant' withdraws his appeal, and the appellee so far acquiesces in such withdrawal as to sue out an execution against the goods- and chattels of the appellant, and also permits one term of' the District Court to pass, without insisting upon his rights [230] under the appeal, we think he is estopped from haying, upon his own motion, a transcript of the judgment sent up at the second term of the District Court after the appeal, and insisting upon said judgment being affirmed. In dismissing the appeal under such circumstances, we think the court did not abuse its discretion. The question in regard to taxing the costs was not raided and passed upon by the court below, and we cannot for the first time entertain it here. Judgment below affirmed.