Hutcheson v. Wells , 1 White & W. 535 ( 1880 )

Opinion by

Quinan, J.

§ 953. Appeal-bond from- justice’s to county court;, invalid for want of motion for new. trial; suit- upon¡ H. recovered a judgment in justice’s, court against W. Without making any motion for new trial, W. gave notice of appeal, and filed an appeal bond. In the county-court the appeal was dismissed because there had been no motion for new trial made in the justice’s Gourt. IT. ■then instituted this suit upon the appeal bond of W. Held, 1. That no motion for new trial having, been made in justice’s court, the appeal bond was a nullity, and there was no appeal in fact. 2. The condition- of the appeal bond was that W. would, “prosecute his appeal with effect, or pay and satisfy the judgment that might he rendered against the obligors on. the bond.” There was no breach of 'this condition, even had the bond-been-a-valid one, for no judgment or decree was or could have keen rendered against the obligors in the bond, because, the county court had- not acquired jurisdiction of the appeal. 3. The judgment of the justice was not suspended by this appeal bond. The plaintiff was at liberty to proceed'at once to the enforcement of his judgment, notwithstanding such appeal bond. He was not'in, any way delayed, hindered; or impeded in the collection aflús debt by it. Nor did the defendant acquire any right ■or benefit by the filing of itv There was¿ therefore, no-consideration. for the appeal bond. 4. That the justice,, in violation of law, granted an appeal, and exacted unlawfully an appeal bond, can create no legal liability upon the obligors in an illegal bond. The judgment of the county court for the defendants was affirmed.

June 9, 1880.

Affirmed.