Opinion
No. 32396.
November 16, 1936.
APPEAL AND ERROR.
Appellees held not entitled to dismissal of appeal for defect in appellants' bond which was not signed by surety, since all defects in appeal bonds may be cured by amendment, and appellants could substitute proper bond, as requested (Code 1930, sec. 3375).
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
Chas. R. Hayden, of Gulfport, for appellees, on motion to dismiss.
The question to be discussed is whether the appeal can now be perfected under section 3375, Code of 1930.
The earliest case under this section requested by the court is that of Hudson v. Gray, 58 Miss. 589. The court in that case held merely that an appellant who in good faith believing that he had a right to appeal under section 2334 of the Code of 1880 allowing administrators or executors to appeal without bond might file his bond for the first time and perfect his appeal after motion had been filed to dismiss said appeal for lack of bond in the Supreme Court.
In this case the appellant was not under the impression that an appeal could be perfected without a bond as shown by his payment of the cost in the court below and the payment of the transcript fee.
State ex rel. Attorney-General v. Board of Supervisors, Coahoma County, 1 So. 501; Johnson v. Marshall, 48 So. 182; Lockard v. Hoye, 74 So. 137; Cleveland State Bank v. Cotton Exchange Bank, 79 Miss. 810.
The case upon which the appellees rely in this cause is Howell v. Miller, 118 So. 178, where the facts are almost identically the same as the case at bar. The appellant seeking to appeal without a supersedeas paid the cost of the transcript amounting to thirty dollars and forty-five cents and deposited twenty dollars with the clerk of the Supreme Court for cost to accrue in that court. Justice Ethridge in that case said "appeals are only allowed on the condition prescribed by law; and the prepayment of the clerk's cost and the deposit of twenty dollars with the clerk of this court do not answer the requirement of the statute. Consequently the appeal is dismissed."
This case has never been overruled and we submit it is still the law in Mississippi.
It is the contention of the appellees in the case at bar that there was no bond filed in this case, the instrument filed being merely the personal obligation of the appellant. We admit that if a bond had been filed with one surety or with sureties which were insolvent or disqualified under the law or if said bond had been insufficient in the amount of the penalty thereof that these are irregularities that could have been cured by amendments, but owing to the fact that no bond was filed and there was no mistake on the part of the appellant as to their right to appeal without bond the cases cited wherein amendments were allowed or bond allowed to be filed do not apply.
Griffith's Chancery Practice, sec. 686; Patterson v. Holly Springs, 127 Miss. 433; Merrill v. Hunt, 52 Miss. 774; Snodgrass v. Nolan, 71 Miss. 857; Wofford v. Williams, 109 Miss. 847.
We respectfully submit that if the court in this case should overrule the motion to dismiss it would hold that any litigant aggrieved by the decision of the lower court could appeal without any bond and such is not the purpose or intent of the statute.
Jo Drake Arrington, of Gulfport, for appellants, on motion to dismiss.
The counsel for appellees admits that under section 3375 "any defects or irregularities in the bond may be cured by amendment" by an appellant's doing what may be necessary to perfect his appeal, and counsel cites many authorities in support of his admission. There would be no need for counsel for the appellants to file a reply brief (it would seem) in view of that admission, except for the fact that the counsel for appellees takes the position that "there was no bond filed in this case," — a position which is incomprehensible.
The appellants in this case did prepay the cost of the transcript, which cost was forty dollars. In addition to prepaying the said costs, the appellants delivered a bond to the circuit clerk, who approved it and filed it.
No citation of authorities is necessary to show that the absence of a surety or sureties on the appellants' bond can only indicate the insufficiency of the bond, and not its nonexistence.
Hudson v. Gray, 58 Miss. 589; Section 1407, Code of 1880 (Sec. 3375, Code of 1930); James v. Wood, 5 So. 106, 65 Miss. 528; Gaddis v. Palmer, 60 Miss. 758; Section 2353, Code of 1880; State ex rel. Attorney-General v. Board of Supervisors, Coahoma County, 1 So. 501, 64 Miss. 358; Purity Ice Cream Co. v. Morton, 127 So. 276, 157 Miss. 728; Lovett v. Harrison, 137 So. 471, 162 Miss. 814; Jayne v. Nash Lbr. Co., 66 So. 813, 108 Miss. 449.
Where, on motion to dismiss an appeal, appellant's counsel admits defect in bond and requests leave to file a new bond, such leave will be granted.
Wills v. Howie Bros., 68 So. 780, 109 Miss. 568.
In the case at bar, the appellants gave a bond that was approved and filed. It is defective, but still it is a bond, and not a nullity; the appellants have already tendered a certified check for one hundred dollars to the clerk of Supreme Court, which section 28, Code of 1930, provides may be done in lieu of a bond; the appellants request leave to do what may be necessary to cure the defects in their appeal bond. It is respectfully urged that the motion to dismiss should be overruled.
The appellants paid the costs incurred in the court below and executed a bond for an appeal in the sum of one hundred dollars, as provided by section 28, Code 1930. The bond is defective in this, that it is signed by the principals, but not by a surety or sureties.
A motion by the appellee to dismiss the appeal for want of a proper appeal bond has been met by the appellants with a request to be permitted either to deposit with the clerk of this court the sum of one hundred dollars under the provisions of section 28, Code 1930, or to substitute a new appeal bond.
Under section 3375, Code 1930, all defects in appeal bonds may be cured by amendment, consequently, the motion to dismiss must be overruled, and the request to substitute a proper bond must be granted. Lovett v. Harrison, 162 Miss. 814, 815, 137 So. 471, and the authorities there cited. Purity Ice Cream Co. v. Morton, 157 Miss. 728, 127 So. 276.
In Howell v. Miller, 151 Miss. 372, 118 So. 178, relied upon by the appellee, no attempt was made to give a bond, and there was no request for leave to perfect the appeal.
We are not here called on to express an opinion as to whether we could permit this appeal to be perfected by the deposit of one hundred dollars with the clerk of this court, for the reason that the appellant has offered to substitute a new bond.
The motion to dismiss the appeal will be overruled, and a new bond may be substituted, approved by the clerk of the court below, within fifteen days immediately hereafter.
So ordered.