Byrne v. Thompson
| Decision Date | 31 May 1824 |
| Citation | 1 Mo. 443 |
| Court | Missouri Supreme Court |
| Parties | BYRNE v. THOMPSON, ADM'R, &c. |
This was an appeal from the County Court to the Circuit Court of Cape Girardeau county. The appeal was dismissed in the Circuit Court, because the appeal bond was not taken in due time, and costs paid. It appears by the record that an appeal was taken, during the sitting of the Court. The record does not show that the bond was taken in open court, or within ten days after the sitting of the County Court; nor was it approved, acknowledged, or witnessed, by or before any person. The bill of exceptions states that the appeal was dismissed, because the bond was not taken in due time, without showing any particulars by which this court can judge whether it was in due time or not. We are, therefore, to take the fact to be, that the bond was not given in due time, as the court below have so found, and we cannot see that finding to be wrong. The question then arises, whether any bond is necessary to perfect the appeal Because, if the appeal is complete without any bond, and the only effect of the bond is to make the appeal a supersedens, the Circuit Court then erred in dismissing the appeal. The act, establishing Circuit and County Courts, § 4, provides, that before any appeal shall be granted, bond with sufficient security, to be approved of by the court, shall be given. We, therefore, think the bond is a pre-requisite to the appeal becoming complete. Besides, this bond does not appear to have been approved by the County Court, according to the requisites of the aforesaid act.(a) The appeal was rightly dismissed, and the judgment of the Circuit Court must be affirmed; and the defendant must recover his costs on this writ of error.
(a). Gen. St. of 1865, 514, 1. See 1 Mo. 357 and note.
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State ex rel. Young v. Hesselmeyer
...be maintained upon a recognizance of appeal from a justice not approved and attested as required by the statute. In the case of Byrne v. Thompson, 1 Mo. 443, an appeal from the County Court was dismissed because the recognizance was not approved, as required by law. (Bradley v. Holloway, 28......
- Evans v. Menefee