JOSEPH A. CLARK, and WILLARD RICE, Plaintiffs in Error. vs. JOSEPH C. BOWERS, Garnishee in attachment against John Busby, Defendant in Error, 2 Wis. 123

By the Court, Crawford, J. From the bill of exceptions, it appears that this case originated before a justice of the peace in "Walworth county, and that judgment having been given by the justice against Bowers, the garnishee, for the sum of forty-five dollars and fifty cents, he applied for an appeal, and filed a recognizance and affidavit for that purpose with the justice. It also appears that the sureties in the recognizance did not on oath “justify their responsibility’’ within ten days after the rendition of the judgment, nor was their pecuniary responsibility admitted by the appellees (Clark &' Bice) or their attorney, as prescribed by sections 228 and 230, of

chapter of the Eevised Statutes. The appellees filed a motion in the County Court to dismiss the appeal, for the reason that no sufficient affidavit and recognizance for an appeal had been filed with the-justiee of the peace within ten days after the judgment had been rendered. This motion was overruled by the County Court, and the appellees excep'ted to this ruling and decision; and thereafter, the appellees refusing to proceed in the cause in the County Court, a judgment of nonsuit was rendered against them, and they have prosecuted the present writ of error.

The conditions upon which • an appeal from the judgment of a justice of the peace may be had, are regulated by statute, and the right to such appeal de- • pends upon a compliance with the requirements of the statute, so that, if these be not fulfilled, no appeal can be entertained by the County Court, because it acquires no control of the case. (Vide Jackson vs. Wiseburn, 5 Wend. 136; Latham, vs. Edgerton, 9 Cow. 227; Commonwealth vs. Richards, 17 Pick. 295; Commonwealth vs. Dunham, 22 Pick. 11; Ladow & Chadsey vs. Groom, 1 Denio, 429; Clark vs.

Miles, 2 Chandler, 94.) It was important that the sureties should either justify on oath, or be accepted by the appellees or thfeir attorney, before the time for taking an appeal had expired ; for without this, the justice was prohibited from receiving the recognizance, and until the affidavit and recognizance were received- by the justice, no appeal could have been properly taken. Here, then, there had been no making of a recognizance with sureties who had justified within ten days after judgment, and consequently there was no compliance with the statute.

The appeal was not properly taken and perfected, and the County Court should have sus~ ^nec^ motion of the appellees, and dismissed the appeal. The judgment of the County Court is reversed, with costs, and the case must be remanded for further proceedings, in accordance with this opinion.