175 Ind. 108 | Ind. | 1911
On September 11, 1908, a judgment for $19, together with costs, was rendered by appellee; then a justice of the peace of Jackson county, having jurisdiction of the cause, against appellant. Thereupon, at the request of appellant, the penalty for an appeal bond was fixed by appellee at $100. On October 5, 1908, an appeal bond, with no penalty named therein, but otherwise sufficient in form and properly executed, was left with a clerk at the office of appellee, in his absence, by an attorney for appellant, who directed the clerk
On October 22, 1908, appellant filed in the Jackson Circuit Court a petition for a writ of mandate to require appellee “ to approve said bond, to grant an appeal, and to make a proper transcript of said cause and proceedings, and to certify it to the circuit court.”
The issuing of an alternative writ was waived by appellee’s appearing and answering. To an amended petition, which set out the defective bond, appellee answered by a general denial, and with a second paragraph, which is an argumentative denial. A demurrer to this latter paragraph of answer was overruled, and appellant filed a reply of general denial, and so the issue was formed.
Subsequently, appellant asked and was granted a change of venue, and the cause was sent to the Scott Circuit Court, where a trial by court was had, and a finding announced that appellant was not entitled to a mandate against appellee to approve the bond in question.
A motion for a new trial was filed by appellant and overruled, and a judgment which followed the finding was rendered.
Appellant has assigned errors as follows: (1) In overruling appellant’s demurrer to the second paragraph of answer; (2) in overruling appellant’s motion for a new trial. The reasons assigned for a new trial were that the decision of the court was not sustained by sufficient evidence and that it was contrary to law.
“Any. party may appeal from the judgment of any justice * * * within thirty days from the rendition thereof.” §1790 Burns 1908, §1499 R. S. 1881. “ The appellant shall * * * file with the justice a bond with security to be approved by the justice, * * * in a sum sufficient to secure the claim of the appellee and interest and costs.” §1791 Burns 1908, §1500 R. S. 1881. The form of such a bond presented by and set out in §1863 Burns 1908, §1571 R. S. 1881, indicates, if it does not indeed require, that a penalty of double the amount of the judgment and costs shall be named therein.
To secure the right, one seeking to appeal must bring himself clearly within the statute by complying with its require
Judgment affirmed.