Evans v. Sharkey County , 89 Miss. 302 ( 1906 )

Mayes, J.,

delivered the opinion of the court.

This is an appeal from the action of the board of supervisors of Sharkey county, under Ann. Code 1892, ■§ 3896, in allowing damage for certain property taken for road purposes. There is no error complained of, except in the allowance of damages by the board of supervisors for the taking of the land, it being claimed that the amount of damage was not sufficient. Section 3896 of the code provides that “all proceedings of the board of supervisors, in the laying out, altering or changing any public road, and assessing damages therefor, may be reviewed by the circuit court in respect to any matter of Taw arising on the face of the proceedings; and on the question of damages the cause may be tried anew, and the damages may be assessed by a jury if the owner of the land so desire, and the board of supervisors- shall grant appeals for that purpose, when prayed for, on the appellant giving bond for the costs in such penalty as the board may require, not exceeding two-hundred dollars-, payable to the county; and such bond shall have the same effect, and be subject to tbe same proceedings, as appeal bonds in other cases. Where the appeal under this section is simply for the purpose of having a jury assess the damage, this being a question of fact, it is not necessary for a bill of exceptions to be presented and signed. It is necessary to file a bill of exceptions, as provided in sec. 3896, only when it is desired to review some matter of law arising on the face of the proceedings; that is to say, when the question involved is whether or not a board of supervisors has proceeded to lay out, alter, or change any public road and asess damage therefor, in accordance with the procedure required by law.

It appears from the record in this case that the bond was not filed until some time after the adjournment of the board. By express provision of the statute the bond required to be given under sec. 3896 is made subject to the same proceedings as appeal bonds in other oases. Unless the statute expressly provides that the bond may be executed after adjournment of the board, as is done in sec. 80, in case of an appeal from board of supervisors in assessment for taxes, or a further time is allowed by order of the board, it is necessary that an appeal bond be executed, and approved by the president of the board of supervisors during the term of the board at which the allowance for damages is made. McGee v. Jones, 63 Miss., 153. The bond given in this case was void, under sec. 3896, for the reason that it had not been approved by the president of the board; neither had it 'been made payable to the county, as required by the statute, nor had it been filed in.time. It may be that under sec. 91, if the bond had been filed in time, the appellant would have had the right to perfect his bond, if the record showed that he had made application for that purpose. But we can only try the case presented by the record, and the record does not show that there was ever any motion made in the court below asking to be allowed to perfect the bond, even if he had filed it in time. It is true that, in the motion for a new trial and in the assignment of -error by counsel for appellant, it is stated that the.court -erred in refusing to allow appellant to amend his bond; but it does not appear from the record that an application was made to the court for this purpose, except as this fact is stated in the motion for a new .trial. The motion for ,a new .trial served' no other purpose than to -call the Cour,t!s attention to some error supposed to be .committed in the record, and, when the record is examined, it is not shown that appellant ever asked the court for leave to perfect his bond.

Let the judgment .appealed from be affirmed.