Opinion
DECEMBER TERM, 1859.
Where a motion was made to dismiss an appeal, upon the ground that no appeal bond had been given, time was allowed the appellants within which to file the bond. If they complied with the order, the appeal was to stand; otherwise, to be dismissed. The appeal bond must be taken and approved by any judge or justice authorized to allow the appeal or writ of error.
A motion was made by Mr. Phillips, on behalf of the appellees, to dismiss the appeal, upon the ground that no appeal bond was given at the time of granting the appeal, as required by the statute, either as a security for costs or supersedeas of execution
Mr. Johnson opposed the motion and offered to give a bond for costs, and thus prevent the dismissal, if consistent with the practice of the court.
THIS was an appeal from the Circuit Court of the United States for the northern district of Georgia.
This is a motion to dismiss the appeal, on the part of the appellee, upon the ground that no appeal bond was given at the time of granting the appeal, as required by the statute, either as a security for costs or supersedeas of execution. 1 Stat. at Large, pages 84, 85, secs. 22, 23, p. 404.
It is admitted that no bond was given, but the counsel resisting the motion proposes to give one for the costs, and thus prevent the dismissal, if consistent with the practice of the court. The practice has been allowed in several cases, as will be seen by reference to 10 Wh. R., 311, 16 How., 148, and 9 Wh., 555. In the last case, time was granted within which to give the bond, or the case be dismissed. The bond may be taken and approved before any judge or justice authorized to allow the appeal or writ of error.
Let the appellant have sixty days to give the bond, and file it with the clerk, upon complying with which order the motion be dismissed; otherwise, granted.