3 Neb. 118 | Neb. | 1873
This case presents but a single question for our determination.
It appears that a public highway was laid out across the plaintiff’s land, and appraisers appointed to assess his damages as provided in section twenty-four, chapter sixty-seven, of the General Statutes. From the award made by these appraisers the plaintiff apjsealed to the district court, and to perfect the same, executed a bond to the state in the sum of five, hundred dollars, which bond conforms strictly with the provisions of the statute,. save that there is but a single surety, while at least two are required. For this defect the defendant moved to quash the appeal, and the plaintiff asked permission to remedy the omission by an amendment of the bond so as to comply fully with the .letter of the statute. The motion to amend was denied and the appeal quashed. This is the ground of the alleged error.
It is not pretended that the present surety is not abundantly responsible for the amount of the penalty of this bond, nor is his liability thereon at all questioned, but the sole objection urged against it is a technical one,
The supreme court of Ohio, in the case of Irwin and others v. The Bank of Bellfontaine, 6 Ohio State, 81, which we conceive to be strikingly analagous to this, held that an amendment should be permitted. This decision was made under the code of Ohio, then but recently adopted in that state, wherein the provision as to amendments was substantially the same as that found in our own.
Section 111 of our code of .civil procedure provides that “the court may before judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of the party, or by correcting a mistake in the name of the party, or a mistake in any other respect. * * * And whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may permit the same to be made conformable thereto by amendment.” And the section following is in these words : “ Sec. 115. The court in every stage of an action ormsi disregard any error or defect in the pleadings or proceedings, which does not effect the substantial rights of the adverse party.”
In construing these provisions, Mr. Justice Swan, in the case above cited, uses this language :
“ Is the filing of an appeal bond a proceeding ? The word is generally applicable to any step taken by a suitor to obtain the interposition or action of a court. Steps taken, by which the judgment of a court is vacated, and the case taken to, and the appearance of parties effected in another tribunal is a proceeding, and a very important one, in the progress of a civil action. It is as clearly a proceeding by which a suitor takes steps to prosecute his action, or defense, in an appellate court, as is the suing out of process at the commencement of an action, or the*122 filing of a petition in error with process served. Besides, the term proeeedmg is used in the section of the code referred to, to distinguish all other steps taken in an action, from those embraced in the word pleading.”
We believe that this construction of the term “proceeding ” as here used is in full accord with the liberal spirit in which our code was framed, and which seems to pervade it throughout; and we feel fully warranted in applying that familiar rule of construction by which courts are usually governed when considering statutes which have been borrowed from a sister state, and in accordance therewith, presuming that in the adoption of these provisions from the code of Ohio, it was the intention of the legislature, to take also the construction which had been given to them by the courts of that state.
We conclude therefore, that the giving of this bond, it being one of the necessary steps required to be taken to obtain a review of the judgment of the appraisers, on the question of damages, in the district court, is a “proceeding ” and clearly within the statutory meaning of that term, and if found to be defective, may be amended xrpon such terms as are just and proper.
It may be urged however that the question of amendment in a case like this is a matter exclusively within the discretion of the district court. To a certain extent this is doubtless true. So long as it is apparent that the exercise of such discretion is not unreasonable, and has due regard to the substantial rights of all parties affected thereby, this court should not presume to interfere. But when it is clear that there must have been a radical misapprehension of the true spirit and scope of the statute under consideration, and in consequence thereof a suitor is deprived of a substantial right, possibly to his great pecuniary injury, it is most unquestionably our duty to interpose and grant him suitable relief.
In holding as we do, we have the support of the decis
The plaintiff must be permitted within a reasonable time, with the assent ‘ of the present surety, to amend his bond now on file; or he may give a new bond,in the sum of five hundred dollars with at least two good and sufficient sureties to he approved by the clerk of the district court.'
The judgment of the court below is reversed and the cause remanded with instructions to proceed in conformity with this opinion.
Eeversed and remanded.
