36 Ind. App. 450 | Ind. Ct. App. | 1905
Appellee moves to dismiss this appeal on the ground that appellants have not taken the steps necessary to constitute this an appeal in term, and that nothing has been done to perfect it as an appeal in vacation.
The action was brought by appellants, and upon a trial the jury returned a verdict for appellee. On March 15, 1905, the fifty-seventh day of the January term, 1905, the following proceedings were had: “Come now the parties by their attorneys; and the court, being advised, now overrules the plaintiffs’ motion for a new trial. * * * And on motion the court now renders judgment on the verdict of the jury herein. It is therefore considered and decreed * * * that plaintiffs take nothing by their suit herein
The statute provides: “When an appeal is takén during the term at which judgment is rendered, it shall operate as a stay of all'further proceedings on the judgment, upon an appeal bond being filed by the appellant, with such penalty and surety as the court shall approve, and within such time as it shall direct.” §650 Burns 1901, §638 R. S. 1881.
In Smock v. Harrison (1881), 74 Ind. 348, the court had granted an appeal on condition that a bond in a penal sum named be filed, “to the approval of the clerk of said
In Buchanan v. Milligan, supra, where, by agreement of the parties, a different surety signed the appeal bond from that designated by the court, the court said: “It is settled by the decisions that an appeal bond is required for the benefit of the appellee, and that the court, in fixing the amount of the bond and approving the sureties, acts merely as an arbiter for the purpose of securing a sufficient bond. If the parties mutually agree upon a surety different from that designated and approved by the court, the bond is as effectual to stay proceedings as if it had been signed by the surety approved by the court.”
Motion ovérruled.