Marinovich's Estate v. Jones

On Motion to Dismiss Appeal. O’NIELL, J. [1] The appellee has moved to dismiss this appeal on the grounds: (1) That the appeal bond is not a legal bond; and (2) that the transcript is not complete. In his printed brief in this court he says that there was no order of appeal. The appellee has not pointed out any illegality or informality in the appeal bond, and we fail to find any defect in it, except that the word “consideration” is used where the word “condition” was intended. This error was probably made in copying the bond into the transcript and is not a sufficient cause for dismissing the appeal. The certificate of the clerk of court of the correctness and completeness of the transcript is in due form. The record appears to be complete, except that there are certain original documents attached which were filed in evidence and should have been copied into the transcript, and except also that the record does not contain an abstract of the minutes of the district court of the proceedings had in the case. We do not find an order of appeal in the [399] record; but the appeal bond recites that the appeal was granted in open court, and, without an abstract of the minutes, we are unable to say that the order of appeal was not so granted. We have concluded not to dismiss the appeal, but to remand the case to the district court to allow the appellant to have the transcript completed, and especially to supply an abstract of the minutes of the proceedings had in this case. For the reasons assigned, this case is remanded to the district court, allowing the appellant 30 days in which to complete and return the transcript. The costs of appeal are to await the final judgment.