Majority
p. 206The People, on the relation of J. G. Furgeson, vs. Herkimer C. P.
Headnote
An appellant is entitled to amend an appeal bond where there is a variance between the amount of the judgment specified in the bond and the judgment actually rendered, although the appeal was prosecuted previous to the revised statutes going into effect.Motion for a mandamus. The common pleas of Herkimer dismissed an appeal for a variance between the amount of the judgment rendered and the sum specified in the appeal bond, notwithstanding that the appellant offered to amend the bond and make it conformable to the judgment. The judgment was rendered in November last, and the notice to dismiss the appeal was made and granted in February. A mandamus was asked, directing the common pleas to vacate the rule dismissing the appeal.
p. 207
A. Hachley, for relator.
L. Ford, contra.
By the Court,
The Revised Statutes, (vol. 2, p. 261, § 204,) declare that no appeal shall be dismissed on account of any informality or other imperfection in the bond, if the appellant and his surities consent to amend, or if an other sufficient bond be filed. This law was in force when the appeal in this case was dismissed, and ought to have governed in the decision of the question, although the appeal was made previous to the first day of January. In its terms, it applies as well to appeals made before as subsequent to its going into effect, and no reason is perceived why its remedial provisions should not apply as well to the case of an appeal brought before as subsequent to that time. An alternative mandamus is ordered.