Brock v. Manatt

Isbell, J. The only question that ’is made to the court by the argument of counsel, and which it is necessary for us ■to consider, is, whether any bond was filed in this case. Eor it is assented to by appellee, that, if there was a bond at all, it was filed in time. And, also, that if it was a defective 'bond, instead of no bond in this case, the court should have allowed plaintiff to substitute a good and sufficient bond, mnder section 2511 -of the Code. It is urged by appellee, that another suit had been -pending about the same time, before the same justice, between «the same parties, in which the plaintiff here was in fact defendant, and the defendant here was in fact plaintiff, and -that the bond was in point of fact an appeal bond in that '¡cause, and not in this. However this may be,- and however .much light the District Court may have had on this subject, we find nothing to justify this statement in the record, and 130 cannot act on mere outside statements, Tbe transcript shows,, at least, that a bond was returned to tbe justice in this case,, with sureties, in accordance with a notice of appeal before given, and this bond bears date tbe same day of tbe entry showing these facts, is properly attested by tbe justice, and is found among tbe papers. Tbe insertion of tbe names of' tbe parties is a mistake that, by a slight inadvertence, could easily creep into tbe bond; and we conclude that, in this state of tbe case, on motion to dismiss tbe appeal for want of a bond, without some showing of fact, that tbe bond was for tbe ¡impose of appealing another cause, or that another cause existed to which it might properly apply, it was tbe duty of tbe court,, on being so moved, during tbe pendency of tbe motion to dismiss, to have regarded this bond, so appearing among the papers, and so identified with them, as a defective bond, rather than no bond in tbe case,, and to have allowed a perfect bond to be supplied, under section 2511 of tbe Code, Judgment reversed, and cause remanded.