Coffman v. Davanay

| Miss. | Jan 15, 1838

Mr. Justice Pkay

delivered the opinion of the court.

This is an appeal from the circuit court of the county of Yalla-busha.

A motion was made to dismiss the appeal, because the appeal bond was not executed at the term in which the appeal was prayed.

The only question presented upon this motion is, whether the bond, required by the statute upon an appeal, must be executed during the term at which the appeal is taken ?

The determination of this question depends upon the construction to be given upon the following provisions of the statute:

"Any party thinking himself aggrieved by the judgment of said court, may appeal therefrom as of right, and the party praying such appeal shall enter into bond with good and sufficient security, to be approved by the court in such penalty as the court shall direct,” &c. Rev. Code, 138, s. 148.

By section 150 of the same act, it is provided, “that no appeal shall be taken from the judgment of any circuit court, unless the same be prayed'for and allowed during the term at which such judgment was rendered.”

What then is necessary to constitute an appeal? First, It must be prayed for during the term at which the judgment is rendered; *855Secondly, The party praying such appeal must enter into bond with surety to be approved by the court. ,

These two acts being necessary to constitute an appeal, the deduction is irresistible that the bond must be executed during the term at which the appeal was prayed, and the surety therein approved by the court.

The motion therefore must be sustained and the cause dismissed.