Kirlin v. Lockhard & Ireland

Brown, C. J.

The money was in Court in this case, and was claimed by the mortgagees and by the landlord whose debt against the mortgagor was for rent. A collateral issue of fact was made up and submitted by the Court to a jury. After verdict, the Judge of the County-Court permitted an appeal to the Superior Court, without requiring security on the appeal. A motion was afterwards made in the Superior Court to dismiss the appeal on the ground that no security was given. The Court refused to sustain the motion, and that decision is complained of.

As a general rule, no appeal is allowed in collateral issues in the Superior Court, but the J udge of the County-Court, when such issue was tried in that Court, might, in his discretion,, permit an appeal to the Superior Court. Revised Code, 3554. The Code does not say that the County-Court in such case shall require security to be given on the appeal. As the appeal was allowed in the discretion of the J udge, he might order it, on condition that bond and security be given. And it would have been his duty to have required security in most cases. But we see no reason why it should have been required in this case. The fund was in the hands of the Court for distribution, and the jury trial was intended to enlighten the conscience of the Court on a question of fact. There could have been no “eventual condemnation money” in this case and no reason why security should have been required. It is not a case under the general law, where the party can appeal as matter of right on giving bond and security.

Judgment affirmed.