McCarthy v. A. H. Holden & Co.

The opinion of the court was delivered by Horton, C. J.: The ground of the demurrer of plaintiffs below was, that the answer did not state facts sufficient to constitute any defense. “Such a demurrer must always be carried back to all the prior pleadings, and be sustained as to the first pleading that is subject to a defect such as is complained of by the demur [315] rer. (Anthony v. Halderman, 7 Kas. 61; Hunt v. Bridge Co., 11 id. 433.) If the petition should not state facts sufficient to constitute a cause of action, the demurrer should be sustained as against it, and not as against the answer.” [The State, ex rel., v. Comm’rs of Pawnee Co., 12 Kas. 426.) We must therefore decide upon the sufficiency of the petition. In order to effect a valid appeal from the judgment of a justice of the peace, the appellant must, within 10 days from the rendition of the judgment, place in the hands of the justice, or in his office, a proper appeal bond. (Bubb v. Cain, 37 Kas. 692; Justices’ Act, § 121.) The petition shows affirmatively that no bond for any appeal was filed within 10 days from the rendition of the judgment. (Struber v. Rohles, 36 Kas. 202.) Therefore, in the case of Holden & Co. v. Fitzgerald, the appeal was not merely irregular, but it was absolutely void. (Dowell v. Caruthers, 26 Kas. 720.) There was no appeal taken within 10 days from the rendition of the judgment. The filing of a bond is a jurisdictional act, and if no bond is placed in the hands of the justice, or in his office, within 10 days, no jurisdiction is conferred upon the appellate court. There is no appeal; there is no bond. The bond filed would not and ought not to have stayed the judgment, or the issuance of an execution thereon. As the bond was filed too late, Fitzgerald never took any appeal, never prosecuted any appeal, and therefore never appeared in the district court at the trial of the claim of Holden & Co. The bond was absolutely void, and McCarthy is not liable thereon. The judgment of the district court will be reversed, and the cause remanded with direction to that court to sustain the demurrer. All the Justices concurring.