157 N.E. 815 | Ohio Ct. App. | 1927
This case originated in the court of common pleas, where the plaintiffs recovered a judgment. This judgment was entered on the journal of that court April 14, 1926. The defendants *353 claim to have effected an appeal from that judgment to this court, but it is admitted that the terms of the appeal bond do not comply with the requirements of the statute, and it further appears that the appeal bond was executed and filed with the clerk March 1, 1926. The plaintiffs have moved to dismiss the appeal because of the lack of an effective appeal bond, and the defendants have made application to "change, renew, or give a new bond with security," and express their ability, readiness and willingness to give such bond in such form, in such sum, and with such security, as the court may require.
We treat the motion of the defendants as an application to amend under the provisions of Section 11363, General Code. If the application to amend involved only the terms of the undertaking, we would follow our own precedent in Lawrence and Vinton counties by allowing the amendment. The really serious difficulty in the case arises from the fact that the bond was filed some six weeks before the entry of the final decree appealed from.
Section 12226, General Code, provides that an appeal bond shall be filed "within thirty days after the judgment or order is entered on the journal."
It is unnecessary to cite the authorities holding that an appeal bond filed after the prescribed period is wholly ineffective. The authorities in this and other states are, however, neither plentiful nor clear on the effect of filing such a bond prematurely. It is said that in Mississippi such bonds have been upheld. James v. Woods,
The real question then before the court is whether or not this court may not only amend the terms of the bond, but may so cause it to be refiled as to bring the proposed appellant within the terms of the statute. Section 11363, General Code, so far as it relates to process, rather than to pleadings, gives the court power to "amend any * * * process * * * by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect."
This power is to be exercised liberally. Austin v. Morris,
Our conclusion is that the undertaking filed long before the decree was entered was absolutely void. The consideration that supports an appeal bond is that such appeal bond stays the right of the appellee to immediately realize upon the judgment which he has recovered. There was no consideration for this bond of March 1st, for there was no judgment being stayed by it. It was given in direct conflict with the provisions of the statute, which requires *356 that said bond should be given within 30 days after the judgment or order is entered on the journal, and is therefore nugatory.
We find ourselves, therefore, without any power to permit the defendants "to change, renew, or give a new bond" in this case, and for that reason the motion to dismiss the appeal is sustained.
Cause dismissed.
MIDDLETON, J., concurs.
SAYRE, P.J., not participating.