Littell v. Bradford

8 Blackf. 185 | Ind. | 1846

Perkins, J.

This was an action of assumpsit commenced before a justice of the peace,, and removed by appeal into the Circuit Court. A bill of exceptions shows that the appeal was there dismissed, on the defendant’s motion, for want of a sufficient appeal-bond. The judgment before the justice was rendered on the 12th of March, 1842, and the appeal papers, including the bond, were filed in the clerk’s office on the 1st of April following. The bond is dated on the 2d of April, one day after the filing of the appeal papers in the clerk’s office. This is the only defect.

The objection is groundless. The date of the bond is no material part of it. The dqy of its execution may be shown by parol. The filing of it in the clerk’s office shows it was then executed, and that it is misdated. The misdating does not vitiate.

W. Quarles, for the plaintiffs. C. P. Hester, for the defendant.

It is also, attempted in this Court to sustain the dismissal, on the ground that the magistrate’s transcript does not recite that an appeal was prayed. It is decided in Humble v. Williams, 4 Blackf. 473, that the filing of an appeal-bond is a sufficient prayer of an appeal. That was done in 'this case.

Per Curiam.

The judgment is reversed with costs.. Cause remanded, &c.