1 Ind. 139 | Ind. | 1848
This was a suit in attachment, commenced before a justice of the peace by the plaintiffs in error against Clark and others. Judgment by the justice on the 10th of June, 1844, against all the defendants. On the 3d of July, 1844, one of the defendants filed an appeal-bond with the justice, the- condition of which recites that he had appealed from the judgment, &c. The justice certified to the Circuit Court, at different times, three separate transcripts of his judgment. The last transcript filed is considered as the correct one.
In the Circuit Court, on the 29th of March, 1845, an appeal-bond for all the defendants in the cause was filed.
Afterwards, the plaintiffs moved the Court to dismiss the appeal, on the ground that it had not been taken by the defendants within thirty days from the time of the judgment. The motion was overruled.
The cause was afterwards dismissed on the defendants’ motion, at the plaintiffs’ costs. The bill of exceptions does not show the ground of this motion to dismiss.
The appeal in the name of only one of the defendants was, no doubt, erroneous. Kain v. Gradon, 6 Blackf. 138. We cannot, however, say that there is error in the refusal to dismiss the appeal taken by all the .defendants. By the 178th section of the R. S. of 1843, p. 892, the Circuit Court is authorized, for certain reasons, to permit an appeal to be taken after the expiration of the thirty days. This appeal by all the defendants was permitted by the Circuit Court to be taken after the prescribed time had expired; but the reason for that permission is not shown by the record. We must presume, in favor of the decision, that the permission was given for a legal cause.
We must also presume that the suit was dismissed on a sufficient ground, the record not showing the cause of the dismissal. Ross v. Misner, 3 Blackf. 362.
The judgment, however, for costs against the plaintiffs is wrong. Congressional townships are not liable for costs. Acts of 1842, p. 111; R. S. 1843, p. 1025, s. 16, part 1.
The judgment for costs against the plaintiffs is reversed. The rest of the judgment is affirmed. No costs.
