delivered the opinion of the court:
Motion to dismiss on the grounds following: 1. Want of sufficient bond on appeal; 2. Bond not signed by all the appellants, or, in fact, is signed by only one of the appellants; 3. No justification of the sureties on the appeal bond appears in the record.
For these reasons it is urged that the bond is void.
This is an appeal from a decree overruling a demurrer, which decree was rendered April 30, 1874. The petition for appeal is addressed _to the clerk and dated June 26, 1874, in behalf of all the respondents.
The bond bears date, September 30, 1874, and is executed by one only of the several appellants, with two sureties. No evidence of the justification or responsibility of the sureties, or approval of the bond, is contained in the record. The bond is conditioned that the appeal shall operate as a supersedeas. It does not appear that the appeal was asked of or allowed by the chancellor. No objection is made to the allowance of the appeal by the clerk, or, rather, that the petition for the appeal was addressed to him. Its allowance is a matter of inference, only, from the execution of the bond, and the preparation and transmission of the record to this court.
Possibly, the mistake of counsel, in this case is, in construing § 1256 with previous sections of the code, whereas it should be construed in connection with § 1257. The appeal should have been allowed by the chancellor “ in vacation or term time,” but the application must have been made and the bond executed *396within twenty days after the decree overruling the demurrer. The allowance of an appeal by the clerk, in the cases provided for by §§ 1256 and 1257, is a nullity, and this being a matter of jurisdiction, will be acted upon be this court whenever the fact comes to its knowledge. It makes no difference that this is not mentioned as á ground for this motion.
One of several parties in interest may prosecute an appeal from the chancery courts, Code, § 1258, and bonds on appeal are sufficient if signed by oneof the several appellants; § 1261. Whether the justification of the sureties under § 1258 should appear in the record sent here, quere f
As the appeal was not applied for and bond executed in accordance with the code, § 1257, the motion is sustained.