Watters v. Patrick

64 Ky. 223 | Ky. Ct. App. | 1866

JUDGE HARDIN

delivered the opinion of the court:

The 753ii section of the Civil Code provides, that “when any bond provided for by this Code is adjudged to be defective, a new and sufficient one may be executed in such reasonable time as the court may fix, with the same effect as if originally executed. ”

In this case the appellee having moved the court to dismiss the appeal for want of a proper appeal bond, and the court having sustained the motion, as appears, on the ground that the bond filed as an appeal bond was not executed, and taken before the clerk of the circuit court, as required by the 847th section of the Civil Code, the appellant offered then to execute an appeal bond, but the court refused to permit him to do so, and this is complained of as error in this court.

The question thus presented for our determination is substantially the same as that decided by this court in the case of Adams & Co. vs. Settles (MSS. Opinion, June, 1865), in which it is said: “ The very purpose of the section (753) was to prevent the sacrifice of the rights of parties through the ignorance or carelessness of officers taking bonds, where the party was, in good faith, attempting to give the bond required, and is intended to apply to every case in which there is such an attempt. ”

As the court had adjudged the bond already taken to be insufficient, we are clearly of opinion that the appellant should have been permitted to cure the irregularity by giving a sufficient bond, as he offered to do.

Wherefore, the judgment dismissing the appeal is reversed, and the cause remanded with directions to permit the appellant to execute a sufficient appeal bond, and for other proceedings not inconsistent with this opinion.