Ross v. TedderRoss v. Tedder
- Reporters:
- Before:
- Nisbet
By the Court.
Nisbet, J.delivering the opinion.
The presiding Judge overruled the objection, and the question is, whether in a cause pending in the Superior Court, an appeal can be entered by consent, without pаying costs and giving bond, or making the affidavit. By the Act of 1799, either party dissatisfied with the verdict of the Jury, may entеr an appeal within four days after the adjournment of the Court, as a matter of right. The right to appeal is the same, whether the verdict be rendered in a cause proceeding at Law or in Equity before the Superior Court, or in a cause in the Inferior Court. By the same Act it is made the duty of the Clerk, where an appeal is entered, to enter the case on the appeal docket. It farther however, declares by proviso, that the person appealing shall, previous to obtaining such appeal, pay all costs which may have arisen on the former trial, and give security for the eventual condemnation money. Executors and administrators are exempted from the operation of this proviso. Cobb’s New Dig. 494. The conditions upon which the аppeal depends, to wit: the payment of costs which have accrued, and the giving bond for the eventual condemnation money, according to our construction of the Act of 1799, аre for the benefit of the party in whose *428favor the verdict has been rendered, and not for thе benefit of the Clerk.
The party prevailing after a trial and verdict, has the legal advantagе of his adversary; he is entitled to a judgment and process to enforce it. The law deems it expedient that the losing party shall have another trial; yet, inasmufch as the other party ‘has this advantage, it puts him upon terms — terms beneficial to the other side.
One of these terms is the payment оf costs. With them he may become ultimately chargeable. If on the first trial the plaintiff prevails, аnd an appeal is entered and he succeeds upon the final trial, he will be chargeаble with the costs if the defendant proves insolvent, and is chargeable with the costs generally, аs a matter of course, if the defendant finally prevails. Cobb’s New Dig. 507, ’8. So if the defendant gets a verdict on the first trial, which is appealed from, and a final judgment is rendered against him, he will be generally chargeable with the costs. Thus in regard to the costs, it is manifest that there is reason for the requirement of thе Statute, that costs should be paid, wholly irrespective of any interest which the Clerk has in the costs. If the requirement of the Statute is for the benefit of the parties, and they waive that benefit, no legal right of the Clerk is violated. The other preliminary condition is security for the condemnation money. Without doubt, that is also for the protection of the party. As the appeal has the еffect of superceeding the verdict, upon which, without an appeal, the party in whosе favor it is rendered would be entitled to a judgment, it is but reasonable that security be given for the final recovery.
These things being so, what shall prevent the parties both standing upon the same level bеfore a verdict, from waiving the first trial, and by consent moving forward to the appeal. If the appeal formally entered, is not necessary to give jurisdiction in the case on the appeal, (and it is clear that it is not,) and if, as we have seen, no one is interested in the prescribed conditions but the parties, we do not consider that there is any valid objection to it. The Clerk, it is true, is delayed in the receipt of the costs, which upon his construction, he would receive оn the ap*429peal. But by our construction he is not legally entitled to it, when the appeal is entered by consent. If injured at all, then, it is still true that no legal right is violated, and it is damnum absque injuria. Appeals by consent еxpedite the trial, and thereby he is made to receive earlier his whole bill of costs. Our cоnstruction is in accordance too with the spirit of the Act of 1842, which prohibits the officers of the Court from demanding costs and fees until after judgment. Cobb’s New Dig. 508.
This decision applies^only to cases brought in thе Superior Court. We do not decide what the construction of the Statute would be in regard to an appeal by consent from the Inferior Court. It may be a serious doubt whether in that case thе Statute should not be strictly complied with, in order to-give jurisdiction on the appeal to the Superior Court.
Let the judgment be affirmed.