Henderson v. Benson

5 N.E. 314, 141 Mass. 218, 1886 Mass. LEXIS 172

• Court: Massachusetts Supreme Judicial Court
• Decided: February 26, 1886
• Status: Published

Opinion

C. Allen, J.

When a party wishes to appeal from the judgment of a district court, compliance with the statutory requirement of a bond with surety — St. 1882, e. 95, and Pub. Sts. c. 154, §§ 39, 52, e. 155, § 29—has been held to be a condition essential to the allowance of the appeal, and the consequent jurisdiction of the Superior Court. A bond without a surety is not such a compliance, and adds nothing to the liability which the appellant is under when the judgment appealed from is affirmed on complaint. Pub. Sts. c. 155, § 34. If the consent of the adverse party could dispense with the surety, it might also dispense with the bond itself. Whatever question there may be in respect to the waiver of formal defects or errors in the bond, the statutory requirement of a bond with surety must be observed, or the appeal fails; and the objection of a want of jurisdiction may be taken at any time before judgment. Santon v. Ballard, 133 Mass. 464. Keene v. White, 136 Mass. 23. Wheeler & Wilson Manuf. Co. v. Burlingham, 137 Mass. 581. Putnam v. Boyer, 140 Mass. 235.

Judgment affirmed.