Windham v. Coats , 8 Ala. 285 ( 1845 )

COLLIER, C. J.

It is provided by statute, that any person . aggrieved by the judgment of a justice of the peace, may, within five days thereafter, appeal to the next superior Court, sitting for his county, first giving to such justice, bond, with good security, in double the amount of such judgment, conditioned to prosecute such appeal to effect-; and in case he be cast therein, to pay and satisfy the condemnation of the Court. The bond in the present case, does not conform literally to the act, but we think it substantially sufficient! It recites the names of the parties to the judgment before the justice, states that the defendant had appealed, contains a specific penalty, which is no doubt for the. proper sum, and if not, the obligors upon the state of the record,-cannot object to it. The bond is an acknowledgment that the obli-gors are bound in the penalty designated, for the payment of the principal, costs, charges, and all expenses attending the suit. This we think equivalent to a condition in totidem verbis, to prosecute the appeal to effect, and in case the appellant be cast therein, to pay and satisfy the condemnation of the Court.

In McBarnett and Kerr v. Breed, 6 Ala. R. 476, the penalty of the appeal bond was $5 25, this Court said, that we would judicially know, that the costs exceeded the penalty, and beyond that sum the obligors in the bond were not liable. Here the amount of the costs are not left to conjecture, but they are explicitly stated in the bill of exceptions. If no objection had been made and overruled, to the rendition of a judgment by the Circuit Court, for an amount exceeding the bond, we should have regarded the irregularity as a mere clerical misprision, amendable at the cost of the plaintiff in error. But the sureties there appeared by counsel, and resisted a recovery against them, for any thing more than the penalty; and the act of 1824, authorises the revision of the judgment on error. [Clay’s Dig. 322, § 55.] The payment of the amount of the bond, to the clerk of the Court, before judgment, did not, in itself, absolve the obligors from liability; inasmuch as the clerk had not authority, under the circumstances, to receive the money. [Murray v. Charles, 6 Ala. Rep. 678.] To have made the payment effectual, it should have been shown, that it was assented to by the plaintiff, or that the money was paid over.

The judgment of the Circuit Court must be reversed, and here rendered, that the plaintiff below recover of Windham and his sureties in the appeal bond, the debt, damages and costs, amounting to $20, and for the residue of the costs, the judgment will be against Windham alone.