37 Ind. 484 | Ind. | 1871
This suit was brought by the appellee against the appellants, and we copy the complaint in full: “ The said Thomas McKeever, plaintiff, complains of the said Timothy J. Gavisk and Patrick Doyle, defendants, and says,
“ ‘ Thomas McKeever v. Timothy J. Gavisk.—Jn the Vanderburg Court of Common Pleas, May term, 1869.—We, Timothy J. Gavisk, as principal, and Patrick Doyle, as surety,
‘“Timothy j. Gavisk,
“‘Patrick Doyle.’
“ But the plaintiff says that the defendants have wholly failed to prosecute said appeal; he has wholly failed to make and file his bill of exceptions, and utterly failed and neglected to perfect said appeal; and that therebysaid judgment is and remains in full force and effect, and that the said sum of money is now due said plaintiff from the defendants herein ; but that they have failed to pay the same, or any part thereof; to the damage of this plaintiff in the sum of three-hundred and fifty dollars. Wherefore, he demands judgment for three hundred and fifty dollars;, and all other proper relief.”
There was a demurrer to this, complaint, by each of the defendants separately, for want of sufficient facts, which was. overruled; and the only question in the case is- the sufficiency of the complaint. We hold that the complaint was sufficient.
It Is true that there was no judgment rendered in the Supreme Court, nor was the appeal prosecuted to this court; and the failure so to prosecute the- appeal as prayed and granted, and for which purpose the bond was given, is the breach'alleged.
The statute, 2 G. & H, 271, sec. 555, requires that one condition of such bond, among others,,shall be, “that he will duly prosecute his appeal.” This condition Is not in this bond, and it is therefore defective, but,this defect may be cured by a suggestion (2 G. & H. 333, sec. 790); and this court has held, that when the bond is filed with and made a part of the complaint, and the defect is palpable from-
The judgment is affirmed, at the costs of the appellants.