Kennedy v. Congle

The Court of Common Pleas are hound to receive a substituted appeal bond, though it is-not executed by the appellant, and if they refuse to receive a bond so executed, this court will o,fder a mandamus. The-.new, appeal bond should be dated on the day it is executed.

This was an application for a mandamus to be directed to the Common Pleas of the county of Warren. It appeared from a statement of the facts signed by the judges of the pleas, that when the above named appeal was called on in its order for trial, before the said court, the counsel for the appellee moved the court to dismiss the said appeal, for an alleged insufficiency in the appeal bond, inasmuch as the same did not specify the place of residence of either, the appellant or his surety ; and the court being of opinion, that the said bond was insufficient, ordered the said appeal to be dismissed, and thereupon the counsel of the appellant asked of the said court, and obtained leave to substitute a new appeal bond in the stead of the one, so adjudged insufficient to sustain the said appeal; whereupon a new'bond, signed by James" S. Williamson and Charles Sitgreaves, esq. conditioned, that the said Robert H. Kennedy should prosecute said appeal, &c.;—but not signed by him, and he not named therein, as one of the obligors, was executed in the presence of the said court, was presented to the said court for allowance, and accepted as an appeal bond in this cause. Which bond was also objected to as insufficient in law, for that the same was not executed by the said Robert H. Kennedy, and he was not named as one of the obligors therein, but said bond was in other respects declared by the court to be sufficient and legal. The said Robert H. Kennedy was not in person, attending the court, when the appeal came on to be heard, but was present by his counsel. This last bond was also by the court adjudged insufficient to sustain said appeal, and the same was dismissed by the court, for want of a sufficient bond; whereupon this ease is stated for the opinion of the Supreme Court, on an application to be made, for a mandamus.