
    Charles Davis v. J. A. Kithcart.
    Supersedeas Bond and Writ.
    A supersedeas bond will not supersede a judgment until a writ of ' supersedeas has been issued, and hence in a petition upon such a bond the plaintiff is required to aver that a supersedeas issued.
    APPEAL FROM KENTON CIRCUIT COURT.
    
      Benton & Benton, for appellant.
    
    
      H. P. Whittaker, for appellee.
    
    February 3, 1880.
   Opinion by

Judge Coper :

A supersedeas bond will not operate to supersede a judgment. Until a writ of supersedeas has been issued the plaintiff may proceed to collect the judgment, notwithstanding a bond has been given. It is only when the judgment has been superseded that the surety in the supersedeas bond becomes liable, and consequently it is necessary when .declaring upon such a bond to allege that a supersedeas issued. Reed v. Lander, 5 Bush 598; Jones v. Green, 12 Bush 127.

That the petition does not contain a statement of facts constituting a cause of action is a defect not waived by a failure to demur or plead in the court below. Section 93, Civil Code.

Judgment reversed and cause 'remanded for further proper proceedings.  