Thomas v. Nicklas

Day, J. 1. JUSTICE OF THE PEACE: judgment : appeal. Section 3597 of the Code authorizes any person aggrieved by an erroneous decision of a justice in a matter of law, to remove the same into the Circuit Court for correction. Section 3601 of the Code pro-r vides: “All proceedings in the justice’s court subsequent to judgment, may be stayed by a bond, entered into like that required in cases of appeals, and on which judgment shall be entered against the principal and surety in like manner and under like circumstances.” A judgment from which an appeal has been taken or a writ of error sued out, without filing any supersedeas bond, may, notwithstanding the appeal or writ of error, be enforced. See Phillips v. Germon, 43 [51] Iowa, 101; C., R. I. & P. R. Co. v. Grinnell, 53 Iowa, 55; Pellersells v. Allen, 56 Iowa, 717. The petition does not: allege that, upon the suing out of the writ of’ error, proceedings upon the judgment of the justice were stayed as providedin section 3601 of the Code. A supersedeas bond was filed upon the taking of the appeal from the judgment of the Circuit Court, hut this simply stayed proceedings upon the order of affirmance. Proceedings upon the judgment of the justice not having been stayed as the statute provides, it was competent for the justice to issue execution, and the defendant Nicklas, in enforcing it as constable, and retaining the goods seized thereunder, was not a trespasser. The court did not err in sustaining the demurrer. Affirmed.