#### A. J. Hughes v. Nora A. Glover.

1. *Appeal—Sufficiency of Transcript—Appeal*Bond.—In trials of the right of property under Sec. 103, Chap. 79, R. S., providing that an appeal may be taken as in other cases, provided the same is prayed on the day of the entering of judgment, it is not necessary that the transcript of the justice should show that the appeal was prayed for on the day of entering the judgment. It is sufficient evidence of the fact if the appeal bond is filed and approved on said day.

Memorandum.—Order dismissing an appeal. Error to the Circuit Court of Moultrie County: the Hon. Edwabd P. Vail, Judge, presiding. Heard in this court at the November term, 1893.

Reversed and remanded.

Opinion filed February 12, 1894.

The opinion states the case.

R. M. Peadro, attorney for the plaintiff in error.

W. G. Cochran, attorney for defendant in error.

Mr. Justice Pleasants

delivered the opinion of the Court.

This was a trial of the right of property between defendant in error as claimant and the plaintiff in the execution.

The finding and judgment were for the claimant and the execution creditor appealed. In the court below she moved to dismiss the appeal, on the ground that it was not prayed on the day of the entering of judgment. The statute provides that “An appeal maybe taken as in others cases, pro*142vided the same is prayed on the day of the entering of judgment, and the bond shall be given within five days from the time of entering ■ of the judgment.” R. S., 1891, Ch. 79, See. 102.

The justice’s judgment was rendered on December 20,1892. His transcript, filed February 24, 1893, contained no reference to an appeal. Upon that fact the motion to dismiss seems to have been founded.

On behalf of the execution creditor a motion or cross-motion was made for leave to the justice to amend his transcript so as to show an appeal prayed on the day of the entering of his judgment. This was supported by his positive affidavit that this was in fact done by the attorney for the execution creditor immediately after the announcement of the judgment, and that he did not make the entry of it on his docket because he thought it unnecessary. A similar affidavit, as to the fact, was made by the attorney, and on the face of the bond appeared the statement: “ Approved by me this 20th day of December, A. D. 1892,” signed by the justice.

The claimant was permitted over objection, to file counter affidavits of her attorney, of Frank Glover, the defendant in the execution, and of Andy Mahan, each stating that the affiant was present in the justice’s office when the judgment was announced and remained there until the proceedings in the case appeared to be ended and- the attorney for the execution creditor had left, and that of Glover positively and those of the others according to their best recollection and belief, that no appeal had been prayed. The affiants on both sides included all the persons present at the time.

Upon this showing the court refused the leave asked, sustained the claimant’s.motion and dismissed the appeal.

We see no sufficient reason for this ruling. The court seems to have given undue weight to the transcript of the justice. There was a reasonable explanation of his omission to note the praying of an appeal, and certain means in writing for making the amendment asked, to conform to the facts, unless the justice committed willful and corrupt perjury by his affidavit, a supposition which is wholly inad*143missible. His certificate to the transcript states that " the said transcript and the papers therewith accompanying, being six in number, numbered from one to six inclusive, contain a full and perfect statement of all the proceedings before me in said suit.” In the record before us appear three papers: the constable’s notice of the time and place for the trial, the appeal bond and the justice’s transcript, all before the *plaoita,*and each marked by the clerk as filed on the same day, February 24, 1893, from which it may well be inferred that the bond was one of the six papers accompanying the transcript. It was thereby made a part of or supplement to the transcript and brought just as fully to the notice of the court. The official certificate of the magistrate that the appeal was asked and the bond tendered and approved on the day his judgment was rendered, backed by his personal and positive oath and also that of the appellant’s attorney, to the fact, as of their actual knowledge, we think is not overcome by the positive affidavit to a negation, of one whose name suggests a close relation to and common interest with the claimant, and those of two others according to their recollection and belief. Ho particular form of “ prayer ” for the allowance of an appeal in such cases is prescribed by law. The desire or intention to appeal, made known in any way to the justice, is 'sufficient. Notice to the appellee or her attorney was not required. It might have been done in their presence without their knowledge of it. If done in any way the justice and appellant’s attorney, who did it, must have known it. Perjury could be assigned upon their affidavits of the fact, but not upon those of claimant’s attorney and of Mahan, if upon that of Glover. The preponderance of the evidence was clearly on the side of the execution creditor. The tender of the bond was of itself a sufficient prayer for appeal, and there is no evidence tending to contradict the official statement of its approval on the same day that the judgment was rendered.

Upon the showing we hold that the dismissal of the appeal was error, for which the order and judgment of the Circuit Court will be reversed and the cause remanded.