People ex rel. Detroit & Birmingham Plank Road Co. v. Judge of the Wayne Circuit Court

Per Curiam. The dismissal of the appeal was erroneous. Our statutes (Comp. L. 1871, §§ 5451, 5453) provide that no appeal shall be dismissed on account of any informality or imperfection in the appeal bond, if the appellant and his sureties consent to amend the same, or if another sufficient bond, to be approved by the court, shall be filed; nor on the ground of a defective affidavit, etc., if the appellant, his agent or attorney, shall make a correct affidavit. Under these statutes leave should have been granted to file the proffered affidavit and bond. Moreover the bond was sufficient as it was. The fact that one of the obligors was named in the bond as principal is immaterial. The statute (Comp. L. 1871, § 5433) requires the bond to be executed by the appellant with one or more sufficient sureties, or by two or more sufficient sureties without the appellant. The obligors in this bond both stand in the relation of sureties, and naming one of them as principal could not change this relation. The proper practice in case of motion to dismiss an appeal for such defects in the affidavit or bond, is to make an order nisi that the appeal be dismissed, unless within a time specified a new and correct affidavit or bond be filed. Mandamus is the proper remedy to correct the error committed in dismissing the appeal. Writ granted.