Price v. Thomas

Mason, J., delivered the opinion of this court. We can discover no ground for the dismissal of this appeal. The objection that one only of the two defendants had appealed without summpns and severance, raised upon the first record, has been obviated by the amended record, which shows that both defendants united in the appeal. Because one only of the defendants filed an appeal bond, ■constitutes no valid objection to the appeal.- , The bond might have been omitted altogether, and still the appeal would have been sustainable.

To do that imperfectly or incorrectly, which need not be dofie at all,, will not prejudice a party’s case. The object of an appeal bond is merely to stay execution. The bond in this case being filed by only one of the defendants, without summons and severance, did not operate as a stay of execution, and the defendants might have resorted to their execution at any time notwithstanding the bond. Nor can we discover any valid objection to this appeal, because it was not brought up upon bills of exception.

As this is like a case of a motion in arrest of judgment, as we shall presently show', it can be brought up upon appeal in the same way. ⁵²¹ As a preliminary question, we will here remark, that the objections made to the exceptions because they were not signed by counsel, nor verified by affidavit, cannot be maintained. Exceptions to an award for defects apparent upon its face need not be verified by the oath of the exceptioner. Nor is it a valid objection that the exceptions were not signed by counsel. They appear to have been filed by the counsel in the cause, which we think was sufficient to impress them with the stamp of genuineness, which is all that is neeessary.

Exception taken to the regularity of an award, is analogous to a motion in arrest of judgment, and therefore does not fall within the operation of the