84 Ind. 168 | Ind. | 1881
The appellee was taken into custody, upon a mittimus issued by .a justice of the peace, by the appellant, who ivas, at the time, the marshal of the city of Elkhart. After his commitment the appellee sued out a writ of habeas corpus, and upon the hearing was discharged from custody.
The appellee was arrested upon a charge of violating one of the ordinances of the city, and was convicted of the charge preferred against him. After his conviction he tendered to the justice an appeal bond, which was accepted, but was not. formally endorsed approved. The justice in entering the judgment stated the amount of costs at twenty-two dollars,, whereas they in fact amounted to the sum of thirty-three and dollars, and should have been entered for that amount.. The attorney of the appellee, finding the amount of costs taxed
We do not deem it necessary to consider whether the justice had any authority to correct the judgment without notice, and we pass that question.
The bond filed with the justice -was a valid one, and its force was not impaired by the error in the statement of the amount of the costs. Under the broad and comprehensive provisions of the statute, the bond was unquestionably enforceable against both principal and surety to the full extent of the law not exceeding the penalty. 2 R. S. 1876, 311; Graham v. State, ex rel., 66 Ind. 386; Philippi Christian Church v. Harbaugh, 64 Ind. 240; Yeakle v. Winters, 60 Ind. 554: Bugle v. Myers, 59 Ind. 73; Koeniger v. Creed, 58 Ind. 554.
A prosecution for a violation of an ordinance of a municipal corporation is a civil action, and bonds given in such cases are to be governed by the law applicable to bonds given on appeal from judgments rendered in ordinary actions at law. It is well settled that the statute cited applies to such bonds, and cures all defects of the character alleged to exist in the one under consideration. Corey v. Lugar, 62 Ind. 60; Railsback v. Grew, 58 Ind. 72; Fuller v. Wright, 59 Ind. 333; Gavisk v. McKeever, 37 Ind. 484; Ward v. Buell, 18 Ind. 104. The rule applies to bonds given in criminal cases. Ott v. State, 35 Ind. 365; Vierling v. State, 33 Ind. 218.
The fact that the justice "did not endorse a formal approval on the bond exerts no controlling influence. The material fact is the acceptance, not the formal entry evidencing that fact. The case is closely analogous to the filing of papers in a cause, and in such cases it is uniformly held that the filing is the essential
The bond filed by the appellee secured his appeal. After this right was fixed, the justice had no'jurisdiction to issue a mittimus. The appeal took the case from his control. Where .a bond is filed entitling a party to an appeal, and is accepted by the justice, he can not issue any process which will put the party in jeopardy of imprisonment. This would be so independently of any statutory provisions upon thesubject. Theact governing cities provides that either party may have an appeal, “ under the same restrictions and in the same manner as in a justice’s court.” 1 R. S. 1876, p. 272; Swift v. Tousey, 5 Ind. 197. The justice’s act requires the party desiring an appeal to do two things, designate the court to which he prays an appeal, and file a bond. 2 R. S. 1876, p. 622, 624. Judge McDonald said, in commenting upon this statute: “As to the manner in which an appeal must be taken, it is to be observed that two things are required, the prayer of the appeal, and a proper appeal bond.” At another place he said: “ The appellant, having prayed his appeal, and filed his bond to the ■acceptance of the justice, has no more to do on his part until the cause is in the appellate court.” McDonald’s Treatise, •224, 225.
It is not in the power of a justice who has accepted an ap
Judgment affirmed.
Woods, J., concurs in the conclusion, but dissents from the ■ proposition that the surety in such a bond is liable for any greater amount of costs than is recited therein.
