184 Ind. 7 | Ind. | 1915
This action was brought by appellants to mandate appellee as auditor of Orange County to approve a certain bond which was tendered him, as such auditor, for the purpose of taking an appeal from the final order of the board of commissioners. The trial court sustained a demurrer to the complaint and appellants refused to plead further, suffering judgment to go against them on demurrer, and appealed to this court, assigning as error the action of the court in sustaining such demurrer.
Appellee asserts that no appeal lies to the circuit court from such order and that the approval of the bond was properly refused for that reason. This question we need not decide. It seems to be conceded that if a right to appeal existed, that it was conferred by either §6022 Burns 1914, §5773 R. 8. 1881, or §7793 Burns 1914, Acts 1905 p. 521.. The first of such sections provides for the bond to be given in appeals taken under the preceding section of the statute which authorizes appeals in general from boards of commissioners to the circuit court. This section requires a bond to be filed with sufficient penalty and sureties to be approved by the auditor. Section 7793, supra, provide^ for appeals to the circuit court from boards of commissioners in proceedings in relation to highways and provides that a bond shall be given with surety and penalty to. be approved by the auditor. It thus appears that the appeal bond under either section, to be sufficient, must contain a penalty.
The bond tendered to appellee as shown by the complaint states that 'the obligors therein are held and firmly bound unto the obligees in the penal sum
Note. — Reported in 110 N. E. 213. See, also, under (1) 31 Cyc 359; (2) 11 Cyc 408; (3) 16 Cyc 744.