The action was begun in the county court, where a judgment was taken against Smith, and he prayed an appeal to Superior Court. The record of the case was accompanied by the appeal bond on which this motion is predicated, which is in proper form and purports to have been executed by the defendants Howard and Monk as the sureties of Smith. On judgment being rendered against the appellant in the Superior Court, Howard and Monk filed an affidavit stating that the paper-writing filed in this case as an appeal bond was signed in blank by them; that no amount was inserted nor was any name mentioned as a payee, (352) and that all the written matter inserted in the said bond has been inserted since the blank form was signed by them. The counsel for the affiants then asked for an issue to be made up and tried, offering to prove the facts set out in the affidavits.
His Honor was of opinion that the court did not have power to grant the motion of the defendants, and that the record certified from the county court was conclusive as to the execution of the bond, and therefore refused the motion. From which judgment the defendants Howard and Monk appealed. The decision of the question presented in this case depends upon the construction of the first and tenth sections of chapter 4, Revised Code. The first section gives an appeal to the Superior Court to every free person, whether plaintiff or defendant, who shall be *Page 270 dissatisfied with the sentence, judgment, or decree of the county court, but requires the appellant, before obtaining the same, to give bond with sufficient security for prosecuting the appeal with effect and for performing the judgment, sentence, or decree which the Superior Court may render against him. The tenth section enacts that "bonds taken for the prosecution of appeals, shall make a part of the record sent up to the Superior Court, on which judgment may be entered against the appellant and his sureties in all cases where judgment shall be rendered against the appellant." The question is, whether upon a motion in the Superior Court for a judgment upon the appeal bond it has the effect of a record the verity of which cannot be disputed, or is it to be taken as a bond the execution of which, though official, may be denied by plea and proof?
We are clearly of opinion that by force of the words "shall make a part of the record sent up to the Superior Court," appeal bonds can (353) no more be disputed or have their verity inquired into than any other part of the record sent up from the county court. By being made "part of the record," they acquire all the sanctity of the record, and the parties to them are conclusively bound by them. Being given in the county court, it must be presumed as a matter of law that that court took them properly, and when they are certified as part of the record the law no more intended that the truth of that part of the record should be a subject of question than that anything else which the court had placed upon its records should be questioned.
It is a strong argument in favor of this construction that, with regard to bail bonds, which are taken by the sheriff out of court but which are, nevertheless, when returned to court, so far made a record that a scirefacias must issue upon them, the obligors are permitted to deny the execution of them by the plea of non est factum, supported by an affidavit.
If the defendants never, in fact, executed the appeal bond, their remedy was by an application to the county court to have the record as to the bond corrected and then to have the transcript of the perfected record sent to the Superior Court. Whether the county court would act at the instance of parties attempting to set up such a defense as that stated by the surety defendants in the affidavit, may well be doubted. The bond may have been, and probably was, made perfect before it was delivered, and, if so, the obligors have no cause of complaint. At all events, the court might properly, in the exercise of a sound discretion, refuse to listen to an application at the expense of the substantial merits and justice of the case.
Our conclusion is that upon the transcript of the record before him his Honor, in the court below, decided right in refusing the plea of the defendants in denial of their bond, and the judgment must therefore be
PER CURIAM. Affirmed. *Page 271
(354)