By the Court,
Cbawfok», J.The judgment of the County Court in this case must be reversed, because that court acquired no jurisdiction of it.
Section 228 of Chapter 88 of the Revised Statutes, prohibits an appeal unless an affidavit, stating that the appeal is made in good faith, &c., be presented *312justice of the peace, before whom the case was tried, and a recognizance be entered into by the ap-peiiant or some person tor him, with one- or more sureties, within ten days after the rendition of iudgment.
In this case no affidavit appears to have been made, nor was the recognizance originally entered into before the justice of the peace, approved by him. In deed, without consent by the appellee, or a justification under oath by the surety, the justice had no authority to endorse his satisfaction upon the recognizance.
In all cases of appeal from the judgment of a justice of the peace, if the requirements of the statute be not complied with, by filing the affidavit and recognizance in the manner and within the time prescribed by the statute, the appellate court should dismiss the appeal, for, if the prescribed acts be not performed, there is no valid appeal. The point has been decided in Clark vs. Miles and another, 2 Chand. 94 ; Brown vs. Pratt and Wood, 4 Chand. 32, and Clark & Rice vs. Bowers, garnishee &c., 2 Wis. R. 123.
We cannot construe the act of March 24, 1852, so as to give it an application in a case like the present one. A party obtains a judgment before a justice of the peace, for a sum sufficient to permit the opposite party to prosecute an appeal; if he choose to appeal within ten days by complying with the provisions of the statute on that subject, the judgment is inoperative; but if he fail to do so, the party who obtained the judgment may thereupon proceed to execution. Now if the act of March 24, 1852, should be deemed to extend to cases of appeal from justices of the peace whenever the party taking an appeal had failed to *313file the proper recognizance required by law within ten days after the rendition of judgment, although he had filed a defective recognizance with the justice, yet the filing of a proper recognizance in the appellate court would have relation back to the time of taking the appeal, and confer a jurisdiction which theretofore had not attached, because at no time previous to the filing of the amended or correct recognizance, had the justice ceased to háve control of the case. The attempt to appeal had not deprived him of the power to issue execution on the judgment, and the appellate court had no jurisdiction unless the conditions imposed by the statute had been complied with. It is this compliance which gives that court jurisdiction, and without in effect repealing that portion of section 228 of chapter 88, of the R. S., which requires the acts to be done within ten days, we cannot extend the act of March 24, 1852, to cases of this kind; and this we believe was not intended by the legislature.
In every case therefore, where a recognizance, such as the statute requires, is not filed with the justice “within ten days after judgment,” no appeal can be entertained; the right to appeal is gone, and the act of March 24, 1852, cannot cure the omission or enable the appellate court to take cognizance of the case.
The counsel for the defendant in error, very properly insisted at the bar, that a motion made in a case, is no part of the record, unless made so by a bill of exceptions, and in this case there has been no bill sealed. Under the twelfth section of chapter 104 of the Revised Statutes, where in the progress of the case, a motion is made requiring a judicial determination, and either party is dissatisfied with the disposition thereof, such party may allege an exception, and *314^ *s ^ie duty of the court to sign the exception and thereby make it a part of the record. The question is then subject to review in this court. Whenever a niotion presents a question of law, as on a motion for nonsuit and the like, the party may allege an exception. Vide Raymond on Bill of Exceptions, 23-32. 1 Burrills Pr. 456, Murray et. al. vs. Judah, 6 Cow. 484.
But even without a bill of exceptions in a case like the present one, everything to show the jurisdiction of the County Court must affirmatively appeal*, and where there is a jurisdictional defect apparent to us, we cannot overlook it, although the party has neglected to show by a bill of exceptions that he sought to avail himself of the defect in the court below.
The judgment of the County Court is reversed, with costs.