State v. Leyden

Baldwin, O. J.

Tbe defendant was tried and convicted before a justice of tbe peace for an assault and battery, and ordered to stand committed until tbe fine assessed against him was paid. Upon tbe same day of tbe trial, tbe defendant filed a bond conditioned, that whereas tbe said defendant was about to sue out a writ of error from tbe decision of tb e j ustice in said cause, &c., &c., that if the said defendant would pay whatever amount was legally adjudged against him, the bond was to be void. This bond was filed and approved by tbe justice, and tbe defendant discharged.

A transcript having been filed in tbe District Court, tbe district attorney moved to strike the cause from tbe docket, for the reason that there bad been no appeal taken from tbe judgment of tbe justice in said cause. This motion was sustained, and defendant appeals.

Under the provisions of § 5095 of tbe Eevision, tbe defendant, in order to appeal from tbe decision of a justice of tbe peace, must give notice to tbe justice that be appeals, and tbe justice must make an entry on bis docket of tbe giving such notice. It is upon this notice that tbe District Court can acquire jurisdiction of tbe cause, and until such notice is given no appeal is taken.

Tbe mere filing of a bond, even if tbe bond in this case could be regarded as an appeal bond, is not of itself sufficient to entitle the defendant to an appeal. Tbe record failing to show that tbe preliminary steps required by law to perfect bis appeal bad been taken, there was no cause in tbe District Court for trial, and tbe court very properly struck it from tbe docket.

Affirmed,