Putnam v. Boyer

• Decision Date: 26 October 1885
• Citation: 5 N.E. 493,140 Mass. 235
• Parties: PUTNAM v. BOYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 235

5 N.E. 493

PUTNAM

v.BOYER.

Supreme Judicial Court of Massachusetts.

Filed October 26, 1885.

Motion to dismiss an appeal, on the ground that the bond filed in the action was defective. In the superior court, the motion was allowed, and judgment ordered for the plaintiff, and the claimant appealed. The material facts appear in the opinion.

A.J. Bartholomew, for claimant.

J.M. Cochran, for plaintiff.

DEVENS, J.

It was the duty of the appellant, if he desired effectively to prosecute his appeal from the district court, to file within 24 hours after the entry of judgment, a bond to the adverse party, with sufficient surety or sureties, to be approved by the adverse party or the justice, in a reasonable sum fixed by the justice, or approved by the adverse party, with condition to enter and prosecute his appeal with effect, and to satisfy, within 30 days from the entry thereof, any judgment which might be entered against him in the superior court, upon said appeal, for costs. Pub.St. c. 154, § 52; chapter 155, § 29; St.1882, c. 95. The bond filed by the claimant recites in its condition an appeal from a judgment given in favor of the plaintiff, but against whom it was given does not appear. There is no statement when such judgment was rendered, nor what was the amount thereof, either in debt or costs. The bond itself bears no date, nor does it appear to have ever received the approval of the adverse party or the justice. An examination of the record of the justice shows that the claimant recognized before him with sufficient sureties, but the record makes no mention of any bond.

The contention of the claimant is that, taking the whole instrument together, in connection with the record, the intention of the parties signing the same can be gathered therefrom; that they must be held liable; and thus that he has perfected his appeal. It may be that the omissions in this bond, or in regard to the failure by the magistrate to act thereon, if the plaintiff had seen fit not to object on account thereof, would not have been held to be of so vital a character as to deprive the superior court of its jurisdiction; and that, if the plaintiff had eventually prevailed, he might, by the aid of the record and such other evidence as would connect this bond with the case at bar, have maintained an action thereon against its signers. Santom v. Ballard, 133 Mass. 464;Keene v. White, 136 Mass. 23;Wheeler & Wilson Manuf'g Co. v. Burlingham, 137...