Yanthis v. Kemp , 40 Ind. App. 649 ( 1907 )

Comstock, J.

Action for the possession of real estate. The trial court sustained a demurrer to the complaint, and rendered judgment in favor of appellees for costs. Appellees appear specially, and move to dismiss the appeal for the reason stated in the motion, that it is a vacation appeal, and no notice has been given to the appellees or any steps taken to bring them into court, although more than ninety days have expired since the filing of the transcript. Judgment was rendered on March 21, which was the sixteenth day of the March term, 1907, of the Marion Circuit Court. On the same day an appeal was prayed and granted, on the condition that plaintiffs file an appeal bond in the sum of $200 within thirty days, with surety to be approved by the court. On April 11, 1907, which was the tenth day of the April term of said court, an appeal bond was filed in the sum of $200 and approved by the court. The transcript was filed May 8, 1907.

To perfect a term-time appeal, it must be prayed and granted, the penalty of the bond must be fixed, and the surety named during the term at which the judgment was rendered. The record discloses that appellees were present when the court rendered judgment and when the appeal was granted, conditioned upon the filing of - a bond within the time named, to be approved by the court. No objection was made to the order. An appeal bond is for the benefit of the appellee. The bond was filed and approved by the court within the time designated, and the transcript filed as a term-time appeal. It may reasonably be concluded that appellees waived the naming of the surety during the term at which judgment was rendered. Buchanan v. Milligan (1890), 125 Ind. 332; Price v. Huddleston (1905), 36 Ind. App. 450. This case is distinguished from Kellogg v. Ridgely (1907), ante, 423, where the record does not disclose that the surety on any bond was approved by the court. Motion to dismiss appeal overruled.