Billings v. Roadhouse — 5 Cal. 71

Majority

p. 71

JAMES M. BILLINGS, Respondant, v. JOSEPH ROADHOUSE, Appellant.

Headnote

The omission of the words “ to pay to,” will not invalidate the obligation of an appeal bond.

Even were this not the case, where such an omission occurs leave should be granted to file a good bond.

Appeal from the County Court of Santa Cruz County.

The ease 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.

D. S. Gregory for Appellant.

1. The bond is good under the statute regulating appeals. Prac. Act, § 628. Amed. 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.

J. H. Watson and R. F. Peckham, for Respondent.

No brief on file.

Murray, C. J., concurred.

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.