Bryan v. Berry

Murray, C. J., delivered the opinion of the Court—Burnett, J. concurring. This case was decided at the present term, not upon the merits, but upon the ground that there was no undertaking on [134]peal. As no appeal ie effectual for any purpose without an undertaking, the appellant must show affirmatively that the undertaking required was given. In this case, the transcript did not show that such undertaking was filed, but upon an application for a re-hearing that fact is shown by the affidavit of the counsel of defendant, Berry, and by the certificate of the clerk, and that the undertaking, after having been filed, was lost. To'show that the undertaking is filed, the certificate of the clerk will be prima facie sufficient, without inserting a copy, and if the respondent has any objections to make against the sufficiency of the undertaking, he should do so, by motion to dismiss the appeal before the case is submitted, and in support of his motion he may use a certified copy of the undertaking.

As the practice in this respect has not been settled, we think the case of the appellant should not be dismissed, under the circumstances. But hereafter, we shall expect the appellant to show by the certificate of the clerk that the undertaking has been filed in due time, and if not shown to have been filed, then we shall require the respondent to make his objection by motion to dismiss, and not for the first time in his brief.

This case was before this Court upon the merits, and was decided at the last October Term, and the remittitur sent down on the second of December, 1856. After the appeal was taken, the plaintiff caused an execution to issue against the property of all the defendants, as no sufficient undertaking had been filed by defendant Daniel M. Berry, to stay the execution. The execution was issued on the fifth day of July, 1856, returnable in forty days, .and was levied on the property of defendant D. M. B., on the seventh of July, and the property sold on the fifteenth, and the execution returned on the fourth of August, 1856. On the fourteenth day of July, one day before the sale, the defendant D. M. B., gave notice to the attorney of the plaintiff that he would, .at the next term of the District Court, make a motion to set aside the execution, and the levy made under it. The motion .was made on the thirtieth of September, 1856, and overruled .by the Court, and an order made by the Court upon the application of the plaintiff, amending the judgment-record nunc pro tunc. From the order overruling the motion to set aside the execution =and levy, and from the order permitting the amendment, the defendant, D. M. B., appealed on the eighteenth November, 1856.