Mitchell v. Goff

Cole, J. 1. Appeal: bond. The District Court erred in sustaining the plaintiff’s motion. It is true, the condition of the bond is uotsucb as is required by our statute (Rev., § 267), although it is probable that, in its legal effect, it is not essentially variant, so far as this case is concerned. But even if it was materially defective, it having been filed and approved by the proper officer, it was the right of the defendant to rectify it, upon the terms offered by him. This right is expressly given by Rev., “§4119. No defective bond or other security, or affidavit in any case, shall prejudice the party giving or making it, provided it be so rectified within a reasonable time after the defect is discovered as not to cause essential injury to the other party.” This express provision in relation to bonds and affidavits is in perfect accord with the general tenor and spirit of our Code, which allows amendments at any time in furtherance of j tistice, to correct errors, mistakes or any defect, so as to secure a full and fair trial upon the merits, and avoid the calamitous consequences to suitors resulting from technical defects at common law practice, and for which that practice had become so justly odious. Reversed.