This case was appealed from a county court to the court below. A motion there to dismiss the appeal was sustained, the order of dismissal reciting that, "the attempted appeal is hereby dismissed because Sam Schwartz did not make application for appeal as provided by Section 704, Code of 1930, and amendments thereto." That section provides that "Appeals from the county court shall be made to the circuit court on application made therefor and bond given according to law. . . . *Page 434 Appeals from the county courts shall be taken and bond given within ten days from the date of the entry of the final judgment" etc. The amendment to this statute appearing in Chapter 256, Laws of 1932, makes no change in this provision thereof. This section does not provide when and to whom an application for an appeal shall be made, or by whom the bond shall be approved, except by the words, "according to law."
The bond for the appeal was filed with and approved by the circuit clerk, who is also the clerk of the county court, within ten days of the rendition of the judgment in the county court, and no contention is here made that he was not the proper officer for the discharge of that duty. The record does not disclose that any application for the appeal was made, unless the tender of the bond was such. The application for an appeal is merely formal, the clerk being without the right to refuse it, provided it is accompanied by a proper bond — the only substantial requirement of the statute. The statute does not require the application to be in writing but may be made verbally, and in the absence of record evidence to the contrary, we must presume that the bond was tendered with a request that it be approved for the purpose of an appeal. The tender of the bond was in fact such a request. Such is the provision of Section 26, Code of 1930, in appeals from the circuit court to the Supreme Court the spirit, if not the letter, of which should control here under Section 696, Code of 1930. Eustis v. Holmes, 48 Miss. 34, invoked by the appellee has no application here, for the statute there required a written petition for an appeal and Section 26, Code of 1930, had not then been enacted.
This appeal should not have been dismissed.
Reversed and remanded. *Page 435