Gericevich v. Bonham

170 So. 680, 177 Miss. 423, 1936 Miss. LEXIS 251

• Court: Mississippi Supreme Court
• Decided: November 16, 1936
• Docket: No. 32396.
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

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.