Rogers v. Gallaway

4 Miss. 58

• Court: Mississippi Supreme Court
• Decided: December 15, 1838
• Status: Published

Opinion

Mr. Justice Pray

delivered the opinion of the court.

This cause is submitted on a motion to dismiss; because,

No such bond, as the law requires, has beeii filed in the office of the clerk below, upon which to predicate the writ of error.

The condition of the bond required by the statute is: “That the plaintiff in error shall prosecute his writ to effect, and for the judgment or decree, damages, interest and costs, in case such judgment or decree shall be affirmed, and, also, for the performing of the sentence, judgment, or decree, which the High Court of Errors and Appeals may render therein.”

The condition of the bond filed in this case is: “That if the said M. T. Rogers shall prosecute to effect his said writ of error, or failing therein, shall well and truly pay, and satisfy the judgment of said court, together with all damages, interest and costs, as the High Court of Errors and Appeals shall award in the premises, then the above obligation to be void, else to remain in full force and virtue in the law.”

This condition we deem clearly insufficient. Suppose in the present case, the judgment below should be reversed for a miscalculation of the clerk, by which it became excessive in amount. This court would correct the miscalculation, and enter such a j udgment here, as ought to have been entered below. In such a case, the condition of this bond presents no security for its payment.

It only provides for the payment of the damages, interest and costs, which this court may award.

The word damages in this condition can refer to nothing but the ten per cent, damages which this court has the power of imposing.

For this defect in the condition of the bond, the cause must be dismissed with costs and damages.