Summary
In Billings v. Roadhouse, 5 Cal. 71, the bond was defective by reason of the omission of the words, "to pay to," and the county court dismissed the appeal.
Summary of this case from Cohen v. ConnickOpinion
Appeal from the County Court of Santa Cruz County.
The case was an appeal from a Justice's Court. The words " to pay to" were omitted in the undertaking. The Court declared the omission fatal, and dismissed the appeal. Defendant appealed to this Court.
COUNSEL:
1. The bond is good under the statute regulating appeals. Prac. Act, § 628. Amend. of 1850, § 20. Ch. on Cont. 77.
2. A mere clerical omission should not invalidate it. Pr. Act, § 71.
3. The Court should have given the defendant an opportunity of filing a new bond, if this was defective.
D. S. Gregory, for Appellant.
J. H. Watson & R. F. Peckham, for Respondent.
No brief on file.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
The County Court dismissed the appeal on the ground that the appeal bond was defective. The defect pointed out is so trifling, that the obligation of the bond would not be affected by it. Even if it were otherwise, the Court should have given the party leave to file a good bond.
The judgment is reversed, and the cause remanded.
Right to file a new in lieu of a defective undertaking on appeal from a Justice Court affirmed: Howard v. Harman, post, 78; Coulter v. Stark , 7 Cal. 244;