Bernard Mager et al., appellants, v. Benjamin Hutchinson, appellee.
Jippeal from Jo Daviess.
The twenty sixth rule of the Supreme Court, requiring a power of attorney, or a copy thereof, to he filed with the clerk at the time of execution of an appeal bond, has reference only to cases where the bond is entered into before the clerk of said Court.
The record of the Circuit Court showed a power of attorney for executing an appeal bond, in due form, and bearing date prior to that of the bond: Held, nothing appearing to the contrary, that the presumption was, that the power was executed on the day of its date.
Francis De Lassoule, one of the defendants in the Court below, prayed an appeal, which was granted on condition that he entered into bond within fifteen days from the rising of the Court. Before the expiration of the time for taking the appeal, a bond was executed thus: “ Francis De Lassoule, by his att’y, O. C. Pratt.” No power of attorney was filed with the clerk of the Circuit Court at the time the bond was entered into. Two months after, a power of attorney was filed with the clerk, which purported to have been executed on the day the appeal was prayed.
E. B. Washburne, for the appellee,
moved to dismiss the appeal for the following reasons, to wit:
1. That the appeal bond was not entered into by the defendant taking the appeal, but p'tirports to have been entered into by his attorney at law.
2. That the authority of the attorney, if he had any, was not filed in the office of the clerk of the Circuit Court at the time the appeal was taken.
O. C. Pratt, for the appellants,
resisted the motion.
Per Curiam.
The motion to dismiss the appeal .in this case must be overruled. The record shows a power of attorney, executed in due form, authorizing the attorney in fact to execute the appeal bond, bearing date prior to the *266date of the bond. Nothing being made to appear to the contrary, the presumption is, that the power of attorney was. executed on the day of its date. The twenty sixth rule, requiring the power of attorney, or a copy, to he filed with the clerk at the time of the execution of the bond, only refers to cases where the bond is entered into before the clerk of this Court.
Motion overruled.