Failure to prosecute an appeal to effect is a breach of the appeal bond. Wood r. Thomas, 5 Blkf. 553; Legate v. Marr, 8 Blkf. 404; Davis v. Sturgis, 1 Ind. 213; Reeves v. Andrews, 7 Ind. 207.

The recovery on an appeal bond can not exceed the penalty of the bond. King v. Brewer, 19 Ind. 267; Graeter v. De Wolf, 112 Ind. 1.

1569. (1501.) Filing transcript.-66. On the filing of such bond, the justice shall make out and certify a complete transcript of all the proceedings had before him; and transmit the same, together with such bond and all other papers in the cause, to the clerk of the circuit court to which the appeal is taken, within twenty days thereafter; or, failing so to do, shall forfeit all his cost in the case. But no such appeal shall be dismissed for such failure of the justice, nor for the insufficiency of the bond, if the appellant will file a sufficient bond, to the acceptance of the circuit court.

Failure of the justice to send up a transcript and the papers will not affect the rights of the appellant. Gumberts v. Adams, 28 Ind. 181; State, ex rel., v. Cressinger, 88 Ind. 499.

Clerical errors in the transcript may be corrected by the justice after the appeal. Bakers v. Chambers, 18 Ind. 222; Hayden v. Souger, 56 Ind. 42.

When both parties appeal, but one transcript need be filed, and one case docketed. Montmorency Co. v. Stockton, 43 Ind. 328.

If the papers are lost and are not substituted by the appealing party, the appeal should be dismissed. Hunter v. Thomas, 51 Ind. 44.

The filing of a transcript in the circuit court is presumptive evidence that the appeal was regularly taken. Unruh v. State, ex rel., 105 Ind. 117.

Defects in the certificate to the transcript is no cause for dismissing the action. State v. Kutter, 59 Ind. 572.

As to what is a sufficient certificate of a justice to a transcript, see Wiley v. Forsee, 6 Blkf. 246; Hayden v. Souger, 56 Ind. 42.

If a bond is filed without a surety, a new hond, with surety, may be filed in the circuit court. Murphy v. Steele, 51 Ind. 81.

1570. (1502.) Trial and practice.-67. Such cause shall stand for trial in the circuit court, whenever such transcript has been filed ten days before the first day of the term thereof, and be there tried under the same rules and regulations, prescribed for trials before justices; and amendments of the pleadings may be made on such terms, as to costs and continuances, as the court may order.

By act of March 9, 1889, it is provided that all actions appealed from justices to any other court shall stand for trial at the next term when the papers are filed in vacation, and when filed in term, to stand for trial at the expiration of ten days from the date of filing. Acts 1889, p. 255. Ell. Supp., section 17. Ante, section 525.

If the justice has no jurisdiction of a cause, the circuit court can not acquire jurisdiction on appeal. Jolly v. Ghering, 40 Ind. 139, Mays v. Dooley, 59 Ind. 287; Horton v. Sawyer, 59 Ind. 587.

If the justice has jurisdiction when the action is commenced, the accruing of interest so as to increase the amount beyond the jurisdiction of the justice will not oust the circuit court of jurisdiction. Bargis v. Farrar, 45 Ind. 41; Stair v. Bishop, 121 Ind. 273. Amendments to the pleadings may be made in the circuit court on such terms as the court may prescribe. Duke v. Brown, 18 Ind. 111; Boggs v. Near, 20 Ind. 395; Railroad Co. v. Clark, 21 Ind. 150; Miller v. Beal, 26 Ind. 234; Hampton v. Warren, 51 Ind. 288; Phillips v. Cox, 61 Ind. 345.

If the justice had no jurisdiction of the cause, an amendment can not be made in the circuit court to make a case within the jurisdiction of the justice. Kiphart v. Brenneman, 25 Ind. 152.

If an amendment is made in the circuit court making a case beyond the jurisdiction of the justice, the action should be dismissed. Pritchard v. Bartholomew, 45 Ind. 219. The same rules as to pleadings apply in the circuit court as before the justice. Carter v. Edwards, 16 Ind. 238; Heller v. Crawford, 37 Ind. 279; Bernhamer v. Conard, 45 Ind. 151; Hill v. Sleeper, 58 Ind. 221.

If the defendant has the burden of proof before the justice, he will have the burden on appeal. Blackledge v. Pine, 28 Ind. 466.

If a demurrer is overruled in the circuit court to a bad reply, the defendant may have the error considered on appeal. Blacker v. Dunbar, 108 Ind. 217.

Erroneous rulings as to special answers are not available if the defense may be proven without plea. Lingenfelser v. Simon, 49 Ind. 82; Bernhamer v. Conard, 45 Ind. 151.

The rules of the circuit court apply as to the selection of a jury and changes of venue. Vanschoiack v. Farrow, 25 Ind. 310; Kerschner v. Cullen, 27 Ind. 184; McDonough v. Kane, 75 Ind. 181.

If a verdict is returned in the circuit court for a sum beyond the jurisdiction of the justice, the excess may be remitted and judgment rendered. Railway Co. v. Breckenridge, 64 Ind. 113.

The cause stands for trial in the circuit court as if it had been commenced in such court. Reeves v. Andrews, 7 Ind. 207; Keicher v. Killbuck Co., 33 Ind. 333; Britton t. Fox, 39 Ind. 369.

1571. (1503.) Appeal after thirty days.-68. Appeals may be authorized by the circuit court after the expiration of thirty days, when the party seeking the appeal has been prevented from taking the same by circumstances not under his control.

A party failing to take advantage of the provisions of this section can not enjoin proceedings upon the judgment. Baragree v. Conkhite, 33 Ind. 192.

As to when an appeal may be allowed after the expiration of thirty days, see Welch v. Watts, 9 Ind. 450; Pruitt v. Shelbyville Co., 2 Ind. 530; Thomas v. Littlefield, 1 Ind. 361; Tucker v. Makepiece, 14 Ind. 186; Brooks v. Harris, 42 Ind. 177; Sample v. Gilbert, 46 Ind. 444; Kreite v. Smith, 3 App. 64.

Appeals can not be authorized in criminal actions after thirty days. State v. Kunbert, 14 Ind. 374.

The party obtaining leave to appeal after thirty days must file the transcript within a reasonable time. Davis v. Luark, 34 Ind. 403.

On the trial of the cause no question can be made as to the right of the court to grant the appeal after thirty days. Kreite v. Smith, 3 App. 64.

1572. (1504.) Appeal dismissed.-69. When an appeal is dismissed by the court, such fact shall be certified to the justice by the clerk, and such judgment stand on the justice's docket as if no appeal had been taken.

The plaintiff has the right to dismiss his suit in the appellate court, and such dismissal operates to avoid the proceedings below. Reeves v. Andrews, 7 Ind. 207. This section is not applicable to criminal actions, and defendants in such cases can not dismiss their appeals without the consent of the court. Wisehart". State, 104

Ind. 407.

1573. (1505.) Costs.-70. Costs shall follow judgment in the circuit court, on appeals, with the following exceptions:

First. If either party against whom judgment has been rendered appeal, and reduce the judgment against him five dollars or more, he shall recover his costs in the circuit court; when the appellant appeared before the justice.

If a judgment is taken by default, and the defendant appeals, he is not entitled to costs by reducing the judgment five dollars. Beall v. Rowland, 32 Ind. 368; Railway Co. v. Hagen, 87 Ind. 30.

If the defendant files answer before the justice, but is not present at the trial, he will recover costs on appeal by reducing the judgment five dollars. Hall v. Reynolds, 14 Ind. 472.

When the defendant reduces the judgment on appeal five dollars, he recovers costs if he appeared before the justice. Brown v. Duke, 46 Ind. 343; Anthony v. Fulhart, 68 Ind. 559; Polk v. Nickens, 63 Ind. 439.

If the party appealing fails to reduce the judgment five dollars, he will be liable for the costs of the appeal. Brown v. Snavely, 24 Ind. 270; Widup v. Gibson, 53 Ind. 484. If the party appealing reverses the judgment, he will recover costs. Brinnaman v. Grover, 16 Ind. 347; Black v. Dale, 18 Ind. 335; Topf v. King, 26 Ind. 391; Castle v. House, 41 Ind. 333; Wallace v. Hays, 20 Ind. 252.

In determining whether judgments are increased or reduced five dollars, accruing interest is not considered. Turner v. Simpson, 12 Ind. 413. See Widup v. Gibson, 53 Ind. 484; Groves v. Wiles, 1 App. 174.

If the plaintiff remits part of the judgment before appeal, the remainder of the judgment is considered as the amount thereof in determining the question of costs on appeal.

Clark v. Milburn, 62 Ind. 203. See Crockett v. Calvert, 8 Ind. 127.

In an action for the recovery of personal property, the fact that in the circuit court the property is valued at more than five dollars less than before the justice will not entitle the defendant to recover costs. Balliett v. Humphreys, 78 Ind. 388.

In determining whether or not a judgment is reduced five dollars or more, accruing interest, and attorneys fees provided for by contract, can not be considered. Groves v. Wiles, 1 App. 174.

Second. If either party in whose favor judgment has been rendered appeal, and do not recover at least five dollars more than he recovered before the justice, the appellee shall recover his costs in the circuit

court.

If the plaintiff appeals and fails to increase the judgment five dollars, he must pay the costs of the appeal. Robinson v. Skipworth, 23 Ind. 311.

Unless the plaintiff recovers in the circuit court, the defendant recovers full costs. Scary v. Brush, 42 Ind. 172.

This section is constitutional. Bergman v. Ashdill, 48. Ind. 489.

1574. (1506.) Execution-Issue.-76. Justices shall, unless otherwise directed, issue executions on all judgments when the party appeared, after four days from the rendition thereof; and in cases of judgment by default, after the expiration of ten days from the rendition thereof: Provided, That in cases of judgment by confession, and in cases commenced by capias, and in cases when it shall be made to appear by affidavit that delay will endanger the collection of the judg ment, execution shall be issued immediately after entering judgment.

If a justice fails to issue an execution when he is required by law to do so, it is a breach of his bond. State, ex rel., v. Brown, 5 Blkf. 494; Weaver v. State, ex rel., 8 Blkf. 563.

Insolvency of the debtor may be considered in mitigation of damages in an action against a justice for failure to issue an execution. Noel v. State, ex rel., 6 Blkf. 523. The justice may be governed by the directions of the plaintiff as to issuing an execution. Tingle v. Pullium, 4 Blkf. 442.

If the plaintiff file an affidavit that delay will endanger the collection of the judgment, execution may issue forthwith. Conrad v. Wilson, 66 Ind. 437.

Justices may be compelled by mandate to issue executions. State, ex rel., v. Engle, 127 Ind. 457.

1575. (1507.) How directed-Form-Where served.-77. The execution shall be directed to any constable of the county, and shall be substantially in the form hereinafter prescribed, and may be served throughout the county.

The execution must command the officer to perform the acts required of him. Gaskill v. Aldrich, 41 Ind. 338.

Executions may be amended so as to conform to the judgments. Silner v. Butterfield, 2 Ind. 24; Hutchens v. Doe, 3 Ind. 528.

1576. (1508.) Indorsement by constable-Lien.-78. Such constable shall indorse on such execution the day and hour when it came to his hands; and from that time it shall operate as a lien on the property of the judgment debtor, liable to be seized on it; which lien shall be divested in favor of any other writ, in the hands of another officer, which shall be first levied on such property.

The execution is a lien on a term for years held by the debtor in real estate. Doe, 6 Blkf. 335.

Barr v.

The lien of a mechanic for repairs on chattels is not superior to the lien of an execution existing when the mechanic received the chattels. McCrisaken v. Osweiler, 70 Ind. 131.

The lien of an execution is not divested by an assignment for the benefit of creditors by the debtor. Marsh v. Vawter, 71 Ind. 22; Griffin v. Wallace, 66 Ind. 410.

If writs are in the hands of several officers at the same time, the one first levied has priority. Moore v. Fitz, 15 Ind. 43.

Executions levied at the same time become equal liens. 554; State v. Cisney, 95 Ind. 265.

Koeniger v. Creed, 58 Ind.

An execution issued upon a void judgment need not be served by the officer. State, ex rel., v. Forry, 64 Ind. 260.

1577. (1509.) When returnable.-79. Such execution shall be made returnable at the expiration of six months; but may be sooner returned, if satisfied or no property of the defendant can be found.

When a full examination for property has been made and none is found, the execution may be returned. Wilcox v. Ratliff, 5 Blkf. 561; Middlewood v. Nevitt, 7 Blkf. 51. Justices of the peace can not punish constables for contempt for failing to return executions. Doepfner v. State, ex rel., 36 Ind. 111.

The return on an execution is not conclusive in favor of the officer when he is sued for a breach of his bond. Waymire v. State, ex rel., 80 Ind. 67.

1578. (1510.) Alias execution.-80. Whenever an execution is returned by an officer having the same, that he has levied the same, and has the property unsold in his hands, or has a delivery bond for the same, the justice shall issue another execution; and shall append

thereto a copy of such return, and such property may be sold on such alias execution in the same manner as on the first execution; and if such property be insufficient, other property may be levied on to satisfy such writ, either before or after such sale.

Failure of the justice to append a copy of the return to an alias execution does not render the proceedings thereunder void. Culbertson v. Milhollin, 22 Ind. 362.

1579. (1511.) Sales.-81. The sale of property under such execution, as to appraisement and the number of offers to sell, shall be governed by the laws regulating sales of personal property under execution, issued from the circuit court.

The property must be present and subject to the view of persons attending the sale. Gaskill v. Aldrich, 41 Ind. 338.

1580. (1512.) Suretyship.-82. Whenever it shall appear from the docket, the justice shall note on the execution, whether any of the defendants are sureties; and if so noted, it shall be the duty of the officer executing the same, first to levy on the goods of the principal; and if enough of such goods can be found to satisfy the execution, no levy shall be made on the goods of the surety.

If the entry upon the docket does not show who are sureties, the justice, if the fact appear by the contract sued on, may note such suretyship on the execution. Phillips v. Cox, 61 Ind. 345.

A replevin bail is a surety within the meaning of this section, and may enjoin the sale of his property until that of the principal is exhausted. Elson v. O'Dowd, 40 Ind. 300.

If the officer fails to first exhaust the property of the principal, he will be liable to the surety for the damages sustained. State, ex rel., v. Madison, 32 Ind. 390.

1581. (1513.) After three years, affidavit required.-119. Whenever any judgment has remained without the issue of execution thereon for the space of three whole years, no execution shall issue thereon, unless on affidavit filed, showing that such judgment is unsatisfied, and how much is yet due thereon.

1582. (1514.) Delivery bond-Constable responsible.-88. The execution defendant shall be entitled to the custody of goods levied upon by virtue of any execution issued by a justice, by executing a delivery bond, with surety, payable to the execution plaintiff, under the rules and regulations prescribed for the execution of delivery bonds to sheriffs in similar cases; and the constable taking the same shall be responsible for the sufficiency of the bond and the solvency of the sureties at the time of the execution thereof.

If the bond is made payable to the constable by mistake, it may be corrected in a suit thereon. Bell v. Tanguy, 46 Ind. 49.

Such a bond may be filed as a cause of action before a justice of the peace without a complaint. Barber v. Summers, 5 Blkf. 339.

In an action against a constable for failing to sell property levied on, he may show as a defense that the property was delivered to the defendant on his executing a delivery bond. State, ex rel., v. Jones, 8 Blkf. 270.

The defendant may waive the insertion of conditions in the bond, which are for his benefit. Patterson v. Brown, 1 Ind. 567.