Lowery v. Petree

McCLELLAN, J. There is no motion to dismiss the appeal. The transcript was filed, though belated, during the term to which, in term time, it was by law returnable. In the absence of a motion to dismiss the appeal, we will not, 'under these circumstances, consider its dismissal. The paper, purporting to be a bond, filed with the statement of contest, did not comply with the requirement of the statute in that particular. — Code 1907, § 470. It should have been conditioned to secure the costs of the contest. Obviously, an attempt, though abortive, was made to comply with the statute as to security for costs. In such case the bond, if defective as a statutory obligation, was amendable. — Wilson v. Duncan, 114 Ala. 659, 21 South. 1017. The doctrine, in this particular, of that decision, was reiterated in Ex parte Shephard, 172 Ala. 205, 55 South. 627. The court, therefore, erred in declining to set aside its order of dismissal upon the immediate (thereupon) offer of contestant to perfect the security for costs of contest, to [561] conform it to tlie requirement of the statute (section 470) therefor. The judgment of dismissal is reversed, and the cause is remanded. Reversed and remanded. All the Justices concur.