The motion must prevail, upon both grounds. Although the statute allows any one of several defendants to remove a cause to this Court, from a Circuit Court, by appeal, yet where the appeal is prayed for by all, and granted upon condition of their entering into bond, the condition and order must be complied with, or the appeal cannot be perfected.
Carson v. Merle, 4 Ill. 168, 3 Scam. 168 (1841)
Dec. 1841
·
Illinois Supreme Court
4 Ill. 168, 3 Scam. 168
Abner Carson, appellant, v. John A. Merle et al., appellees.
Appeal from, Carroll.
Where an appeal is prayed for in the name of several defendants, and it is granted upon condition that the defendants enter into bond, it is not a compliance for one of the defendants to execute the bond, without the others.
Where an appeal is granted upon the party’s entering into bond within thirty days, the time is to be computed from the day on which the order was made ; and not from the last day of the term of the Court.
Where an appeal is dismissed, a writ of error may issue, upon the transcript of the record filed in the appeal case, and a supersedeas may be granted thereon, if the record presents a proper case for such a writ.
A. T. Bledsoe moved to dismiss the appeal in this case, because the appeal bond was not entered into within the time limited *169by the Court, nor was the same executed by the defendants, but by only one of them. The Court below granted the appeal, upon the defendants’ entering into bond, &c., within thirty days. The bond was executed by one of the defendants, Carson, only, and was not filed until after the expiration of thirty days from the date of the order, but within thirty days from the adjournment of the Court.
Thompson Campbell, for the appellant,
cited R. L. 496; Gale’s Stat. 537, and contended that the bond was filed in time.
I concur in dismissing the appeal, for the reason that the bond was not executed within thirty days, as required by the order of the Circuit Court; but dissent from the opinion of a majority of the Court, on the other point; believing that where an appeal has been prayed for and allowed, all or any one of the defendants has the right, under the statute, to file his bond, and prosecute his appeal.
Wilson, Chief Justice, also dissented.
Appeal dismissed.
After the dismissal of the appeal, Campbell moved for a writ of error and supersedeas upon the record filed in the case.
The motion was allowed.