Covell v. Mosely

15 Mich. 514, 1867 Mich. LEXIS 48

• Court: Michigan Supreme Court
• Decided: July 9, 1867
• Status: Published

Opinion

Per Curiam.

It has always been held by this court that unless in case of gross negligence, no appeal will be dismissed where the return is filed before the motion to dismiss is called on.

In this case, the parties being apprised of the irregularity of the return, at once took such steps as were in their power to have the mistake rectified.

They are not, therefore, in fault, and the appeal can not be dismissed on that ground.

The claim of appeal forms no necessary part of an appeal, and the filing of a bond, properly approved, is the only condition required by law. This bond is a valid bond of appeal for those parties in whose behalf it purports to have been filed, and the fact that all the parties whose names appear in the claim for appeal have not joined in it, can not invalidate it as to those parties who did not join. As to them, therefore, the appeal is valid, and the motion to dismiss must be denied, and inasmuch as upon being notified they at once offered to do all that justice required, no costs will be awarded against them.

Lena Young, one of the defendants, not having joined in the bond, and the bond not appearing to have been made in her behalf, she can not be regarded as having aj>pealed. There being no bond in her behalf, there is nothing to amend; and having lost her appeal by lapse oí time, it is out of the power of this court to relieve her.

Motion on her behalf denied.