Barnett v. Gilmore

33 Ind. 199 | Ind. | 1870

Elliott, J.

In tbis case, Gilmore contested the election of Barnett to tbe office of county treasurer. Gilmore succeeded before tbe board of county commissioners, and Barnett appealed to the circuit court, and filed a bond with the auditor the day after the decision was made. The bond, however, contained no penalty. The auditor failed to file a transcript of the proceedings before the commissioners and the papers in the case, in the clerk’s office of the circuit court, for more than fifty days after the bond was filed.

In the circuit court, Barnett moved to dismiss the case, on the ground that there was no sufficient cause of contest. Pending that motion, Gilmore moved to dismiss tbe appeal, for tbe reasons, first, that no bond was filed authorizing an appeal; and second, because the transcript and papers were not filed in the clerk’s office within twenty days after the appeal was taken. The court dismissed the appeal, to which Barnett excepted. Afterwards Barnett tendered a proper bond, and asked to have the appeal reinstated, which the court refused to do, to which an exception was also taken. Barnett appeals.

The motion to dismiss the appeal had precedence over the motion of the appellant to dismiss the cause.

The failure of tbe auditor to file the papers and transcript in the clerk’s office within twenty days after the appeal was taken was no cause for tbe dismissal of the appeal. Day v. Herod, at the present term, ante, p. 197.

J. J. Smiley, W. Neff, S. Claypool, J. A. Matson, and C. C. Matson, for appellant. W. A. McKenzie, D. C. Donnohue, D. E. Williamson, and A. Daggy, for appellee.

The appeal bond was defective, as it contained no penalty, and the appeal was properly dismissed for that reason. The offer to file a new bond, if allowable at any time, came too late after the appeal had been dismissed, and there was no error in refusing to reinstate the;appeal.

Judgment affirmed, with costs.