Nealy v. Sexton

Decided June 15, 1833

<p>Error to the Common Pleas. The original suit was before a justice. The defendant then gave bail to stay the execution of the judgment against him, and afterwards, before ten days had expired after the judgment, gave bail, for an appeal to the Common Pleas. That court quashed the appeal, because the appellant had forfeited his right to appeal, by entering bail for stay of execution, and ordered the appellant to pay two dollars costs. To reverse these orders, this writ of error is brought.</p>

Decided 1833-06-15

WRIGHT, J.

¶1The statute (29 O. L. 177) allows appeals from all final judgments of a justice of the peace, except those entered on confession of the defendant; 5 O. 442. A party may desire to stay execution, in order to obtain counsel as to the propriety of appealing, and thus save expense, or the taking his property or body in execution. This does not affect the right-to appeal; such case is not within the exception of the statute. A party against whom there is judgment, may stay- the execution, and appeal also. The *321♦orders to quash, and to pay costs, and all proceedings since [319 filing the appeal, are reversed; with costs to the plaintiff in error; and the cause is remanded to the Court of Common Pleas, with instruction to reinstate the appeal, and proceed.

¶2[Appeal from nonsuit; Phillips v. Mustard, 3 W. L. M. 141, 146. Giving bail for stay does not waive right of appeal; Russell v. Giles, 31 O. S. 293, 294.]