An appeal from a justice's judgment cannot be taken after the day of its rendition. [Changed by statute, allowing two entire days after the judgment, exclusive of Sunday, Code, 3140, within which time either party may appeal.]
WHITE, J., delivered the following opinion of the Court: —
This suit was commenced before a justice of the peace, who gave judgment for Kirk, the then plaintiff, on the 3d day of April, 1813. On the seventh day of the same month, Hayes appealed to the County Court. Upon the appeal being returned, the County Court dismissed it. He appealed to the Circuit Court, where the judgment of the County Court was affirmed; from which Hayes appealed to this court, and now the only question is, whether the appeal was properly granted on a day subsequent to that on which judgment was rendered.
We would very much incline to support the propriety of this appeal from the justice to the County Court, if we could see any thing in the record from which we could collect that the appeal was prayed on the day the judgment was rendered, although the bond for the appeal was executed afterwards; but there is nothing stated from which such an idea can be collected; and, supposing the appeal asked for and granted four days after the judgment, we are constrained to believe the justice at that time had no power to grant the appeal; Kirk having recovered his judgment departed, having no reason to believe the appeal would be asked or granted, would have no notice of the appeal, and therefore would neither go to the court to prosecute his cause or pay any attention to it. We therefore believe this judgment of the Circuit Court ought to be affirmed, and that a procedendo should be issued to the justice, that Kirk may obtain an execution from him and collect his judgment.