Opinion
05-22-1823
Brown v. Matthews
Wickham, for the appellant,
This was an appeal from the chancery court of Greenbrier, which reversed a decree of the county court of Greenbrier sitting in chancery.
A suit was brought in the county court, by Samuel Brown against John Matthews and others, which was decided in favor of the said Brown. On petition to the chancellor, an appeal was allowed on the usual terms of giving bond, & c. A bond was accordingly given; but it was in fact a certiorari bond, instead of an appeal bond. In the court of chancery, no notice whatever was taken of this error; but the chancellor entertained the appeal, and finally reversed the decree.
An appeal was taken to this court by Brown.
Affirmed decree.
Wickham, for the appellant, contended, that there was no appeal from the county court to the court of chancery, as no appeal bond had been given, or if it were given, the bond was not good, being only executed by a surety. He said, that the court of appeals would look into the regularity of the steps in taking an appeal; and that this case was not like that of a court of original jurisdiction, where a party has a day given him to plead. He must take advantage of an error in this way, or in none.
OPINION
Brooke, Judge.
The court is of opinion, that if the bond was such a bond as seemed to be supposed by the bar, the objections taken to it, would not avail. But the bond in the record, is a certiorari bond, and not an appeal bond. If objected to in the court of chancery, that court would not have finally dismissed the appeal. The taking an improper bond, being the mistake of its clerk, the most it could do, would be to dismiss it nisi, or to lay the party under a rule to give a proper bond in a reasonable time. In this court, the objection comes too late. The appellant Brown, who was the appellee in the court of chancery, having not only omitted to make the objection there, but by putting in a plea, admitted that the appeal was regularly before that court. On the merits, the court is of opinion to affirm the decree.