Jones v. Davis
| Citation | 4 Mo. 28 |
| Parties | LEVI JONES v. AUGUSTUS C. DAVIS. |
| Decision Date | 31 May 1835 |
| Court | United States State Supreme Court of Missouri |
APPEAL FROM THE CIRCUIT COURT OF HOWARD COUNTY.
Jones sued Davis before a justice of the peace, and there had judgment. To reverse that judgment, Davis appealed to the Circuit Court, where he had judgment. To reverse the judgment of the Circuit Court Jones prosecutes his writ of error. In the Circuit Court Jones moved to dismiss Davis' appeal from the justice, because, as is alleged, there was no appeal taken, and because there was no appeal bond filed. The Circuit Court overruled the motion, and allowed the defendant (Davis) to file a new appeal bond.
It is assigned for error, 1st. That the Circuit Court refused to dismiss the appeal. 2d. That the court permitted Davis to give a new recognizance of appeal. Looking into the transcript of the proceedings before the justice, we find this entry: “The said Davis, failing in his application for a new trial in the above cause, prays an appeal to the Circuit Court,” &c. An affidavit is filed and tested by the justice. An appeal bond is also filed, but not tested by the justice. This bond is made to Levi Jones. It is the opinion of the court that there appears on the transcript sufficient evidence of an appeal. After affidavit and recognizance of bail filed, the justice had no discretion. It became his duty to grant an appeal and to test the recognizance, and this he must evidently have intended to do: otherwise he would not have entered the prayer of appeal or have tested the affidavit. The Circuit Court in this state of the case, we think, did right to allow the defendant to file a new appeal bond.(a) The judgment of the Circuit Court is therefore affirmed.
(a). If a Justice fail to approve and attest a recognizance for an appeal it is void--Cockrill v. Owen, 10 Mo. R. 287. Appellant not entitled to amend, unless court allows--Smith v. Keenan, 14 Mo. R. 529; see also Halsall v. Meier, 21 Mo. R. 136; Mathews v. Gloss, 22 Mo. R. 169; Smith v. Montreil, 26 Mo. R. 578. But see Gen. St. of 1865, p. 724, § 17.
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Drainage Dist. No. 5, Okla. Cnty. v. Ferrell
...is made, he should be permitted to supply the defect. In that case, the party taking the appeal had not signed it, as required. In Jones v. Davis, 4 Mo. 28, it was held that, although the justice of the peace did not approve the bond, the circuit court could permit a new bond to be given. A......
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Drainage Dist. No. 5, Oklahoma County v. Ferrell
...is made, he should be permitted to supply the defect. In that case, the party taking the appeal had not signed it, as required. In Jones v. Davis, 4 Mo. 28, it was held that, the justice of the peace did not approve the bond, the circuit court could permit a new bond to be given. A case ver......
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