Mr. Justice Bean,
after stating the facts, delivered the opinion of the court.
1. The question to be decided is whether the filing of an undertaking for an appeal within the time required by statute is essential to the jurisdiction of the appellate court. As g, general rule, such undertakings are for the benefit of the respondent, and, consequently, he may waive a technical compliance with the statute, and, if he does, the appellant is estopped from attacking the jurisdiction of the appellate court on the ground of defects in his own undertaking: 1 Enc. Pl. & Prac. 1002. And this we take to be the rule in this state. The statute (Hill’s Ann. Laws, § 537) requires an undertaking on appeal to be filed within ten days from the service of notice of the appeal, but the filing of the undertaking within such time is not made essential to jurisdiction,because it is also provided in the same section that where a party in good faith gives notice of an appeal, and thereafter omits, through mistake, to file an undertaking, the court or judge thereof, or the appellate court, may permit such undertaking to be filed.
2. The undertaking in this case is a voluntary obligation entered into by the defendant and her surety. It is [412]*412in regular form, and, having served its purpose, neither the appellant nor the surety is entitled to a dismissal of the appeal because it was not filed in time. Such right belonged to the respondent alone, and, if he saw fit to waive it, and proceed with the trial without objection, the appellant or her surety cannot take advantage of the defect. It follows that the judgment of the court below must be affirmed, and it is so ordered. Affirmed.
Free access — add to your briefcase to read the full text and ask questions with AI