
    ACTION ON APPEAL BOND.
    [Hamilton Circuit Court,
    January Term, 1897.]
    Smith, Swing and Cox, JJ.
    Lena Rudershauer v. Fred Pagels.
    3. Evidence in action ,on appeal Bond must show appeal to ki.ve been Perfected.
    Where the evidence, on an action on an appeal bond, in a case appealed from a justice to the court of common pleas, fails to show that the appeal was perfected, (sec. 6586, Rev. Stat.) the plaintiff is not, on the authority of Gimperling v. Hanes, 40 O. S 114, entitled to a judgment.
    :2. If Evidence shows Perfected Appeal, Court may hold Surety though Petition is Defective.
    Where, in such an action, the petition does not allege that the appeal was perfected, but the evidence shows that such steps were taken, the court is authorized, where no demurrer is filed, to hold the surety.
   •Smith, J.

We are of the opinion that if the evidence in this case had shown that the defendant in error, Pagels, after the dismissal of the appeal •taken by the defendants, Fisher and others, in the original action brought by Pagels against them before the justice of the peace, on the .ground that it was not filed in time, that failed to comply with the provisions of sec. 6586, Rev. Stat., and to have a transcript docketed, and 'the other steps therein pointed out taken, that he was not entitled, on the authority of Gimperling v. Hanes, 40 O. S., 114, to a judgment in this case against the plaintiff in error, Rudershauer. But the question was not fairly presented by the record before us. It is true that the petition filed by Pagels against the surety, did not allege that these steps had been taken, but there was no demurrer filed to his .petition, and if the evidence had shown that such steps had been taken, the court would have been authorized to hold the surety liable on her appeal bond.

It may be that the question was sought to be raised on the motion of the defendant below, interposed at the close of the evidence for the plaintiff, in effect asking for a judgment in her favor. But the difficulty on this point is, that it is apparent that we have not before us in the bill of exceptions all of the evidence offered by the plaintiffs. The docket of the justice of the peace in the original case, was offered in evidence, and read. A copy of this is not given. It might have shown that under sec. 6589, on the dismissal of the appeal by the common pleas, a transcript had been filed by Pagels after the appeal was dismissed, and the case remanded to the justice to be proceeded with as if no appeal had been taken.

In addition to this, the same and additional facts may have been shown by the two affidavits offered in evidence by the defendant herself, and which are not made a part of the bill of execeptions.

We therefore, with some reluctance, feel compelled to affirm the judgment.  