Polk v. Town of Seminary

Mayes, J., delivered the opinion of the court. Polk was convicted in the mayor’s court on the 30th day of December, 1905, of an assault and 'battery, in violation of a municipal ordinance, and fined $25 and costs, and claims to have appealed from the judgment to’ the circuit court. In compliance with sec. 88 of the code of 1892, the mayor transmitted to the clerk of the circuit court what purported -to be a certified copy of the record in the case, containing some, but not all, of the original papers. It appears that no appeal bond was sent up with the papers, nor does the record show that any bond was given. The case was regularly docketed by the circuit clerk and wais called for trial by the circuit judge at a regular term of the circuit court, whereupon the attorney for the town made a motion to dismiss the appeal and for a writ of procedendo, assigning, as the reason, that defendant had filed no appeal bond. In answer to this motion the defendant offered to produce evidence that he had duly made and filed an appeal bond, and that it was properly and duly approved. The court declined to admit this evidence. The defendant then made a second motion suggesting a diminution of the. record in the case, and asking for a writ of cerliorwri to send up the appeal bond. This second motion was overruled by the court, and judgment was rendered dismissing the appeal, and granting the writ of procedendo to the court below. It will ‘be observed that in the motion made by defendant to be allowed to introduce oral proof that he had executed the appeal bond, he does not tender a substantial copy of the bond oi' disclose who the names of his sureties are, or the amount of the bond, or in any other way describe it, but merely asks that [297] he.be allowed to produce proof that he had made the appeal bond. It will also be observed that nowhere in the record, as sent up by the mayor, does it show that any appeal bond was ever granted and approved by him, and there is no appeal bond in the record. Until the bond has been executed as provided in Code 1892, § 86, there can be no appeal to the circuit court; and, if it be true, as alleged, that an appeal bond was executed, it was necessary for the defendant to accompany his application to be allowed to prove that the bond was executed with a tender of a new bond and by affidavit disclosing the name of his sureties, aud the amount of the bond, or, in other words, a substantial copy of the original bond, before parol proof could be received of the fact that one was executed. The bond was the thing which authorized the appeal, and it was necessary for the defendant to inform the court in his motion who his bondsmen were, and the amount of the bond, before proof could be admissible as to the execution of the bond, to the end that the court might have'some recourse in case the judgment was affirmed or the defendant failed to prosecute his appeal. Let the ease he affirmed.