The opinion
Appleton, C. J.
This is an action of debt on a recognizance taken on appeal in a process of forcible entry and detainer and tried by the justice of the superior court without the intervention of a jury.
It appears that on May 20, 1878, a process of forcible entry and detainer was commenced by the plaintiff against Nelson S. Neal, in the municipal court of Augusta, on which judgment was entered June third, for the plaintiff, and an appeal therefrom was claimed by the defendant to the next August term of the Supreme Judicial Court and this recognizance was taken by the municipal judge and the appeal allowed as claimed.
The recognizance was duly filed at the August term, and the appeal entered, which at the following October term was dismissed for the reason that the Supreme Judicial Court had not jurisdiction, it having been conferred on the superior court for Kennebec county, by c. 10, of the acts of 1878.
To the ruling dismissing the action exceptions were filed, which were subsequently overruled.
*515 The recognizance was to a court not having jurisdiction. It is an incident to an appeal. When there is no appeal, there can be no recognizance to prosecute the appeal. It is not a voluntary contract. It is compulsory upon an appellant. When the recognizance fails to be in accordance with the statute authorizing it, it is held void. Owen v. Daniel, 21 Maine, 180 ; Dennison v. Mason, 36 Maine, 431; Jordan v. McKenney, 45 Maine, 306. Much more, must it be held void when no such appeal was allowed as was taken, and consequently the magistrate has no authority to take it. Harrington v. Brown, 7 Pick. 301 . No recovery can be had upon a recognizance taken in a suit or proceeding, of the subject matter of which, the court to which it is returnable, has no jurisdiction. State Treasurer v. Wells, 27 Vt. 277 . The recognizance in suit is void, and no action can be maintained upon it. State v. Fowler, 28 N. H. 184.
Exceptions overruled.
Walton, Virgin, Peters and Svmonds, JJ., concurred.