APPEAL BOND.

[Montgomery Circuit Court,

June Term, 1889.]

Shauck, Shearer and Stewart, JJ.

#### *GERMANIA BUILDING & LOAN ASSN. v. PHILIP KERN ET AL.

1. Application to Renew is a “Proceeding.” ,

An application to change or renew an undertaking for appeal under sec.. 523,3, .Rev.¿Stat, is a “proceeding” within the meaning of sec. 5114, Rev. Stat.

S. Defect in May be Cured by Amendment.

Where by mistake an appeal undertaking is conditioned that the appellant shall abide and perform the order .and judgment of the district court,instead!of the circuit cpurt, such undertaking may, with the consent of the surety, be amended by correcting the name of the appellate court therein; or the circuit court may allow a new undertaking to be given.

Motion to dismiss appeal.

*

 This case is cited, in Winterfeldt’s appeal, by the common pleas cqurt, 2 Ohio Dec. 473.

Shearer, J.

In July, 1888, Philip and Catherine Kern; gave ,notice .of their intention to appeal to this court from a decree entered against them in the common pleas.

In due time, to-wit: August '6, 1888, appellants gave an undertaídng in appeal, with sureties approved by the clerk, conditioned that said appellants should “prosecute their appeal to effect without unnecessary delay, and abide and perform the order and judgment of said district court, and pay all damages and costs which might be awarded against them.”

Motion is now made by the appellee, to-dismiss the appeal for want of a proper undertaking. This is resisted by the appellants, who ask leave to file an amended bond, or to amend.the bond.on file by substituting the word “circuit”' for “district” where the latter occurs therein.

Ever since April, 1857 (S. & C., 1169), the statutes of this state have contained substantially the provisions of sec. .5333, Rev..Stat., respecting the-apieniflment or renewal of appeal bonds.

This section, among other things, provides-that “if the undertaking is insufficient in form or amount, the circuit court,, on motion, may order a .change; or renewal of the undertaking, or a new undertaking to'be given ■* * ■* ; and if the order .of the .circuit court be .complied .with, the. appeal ..shall, not ..'beulismissed, but the. court shall hear and determine-the cause1 in-the same manner as if the order had not been made; but otherwise the appeal shall be dismissed.”

This provision does not limit the power of this court to grant’leave to amend or renew an undertaking for appeal .to cases in which, such ¡ppdertaking is'formally defective , or insufficient in amount. An application do. change .or-renew *406such an undertaking is a “proceeding,” and is governed by sec. 5114, Rev. Stat.

Haynes & Swadener and A. A. Winters, for the motion.

J. L. H. Frank and J. A. McMahon, *contra.*

Irwin v. Bank of Bellefontaine, 6 O. S., 81; Negley v. Jeffers, 28 O. S., 90-97; Johnson v. Johnson, 31 O. S., 131; Watts v. Shewell, *Id.,*331.

Under said last named section, in furtherance of justice, the court may “amend any pleading, process or proceeding, by adding or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect.” That the defect in the undertaking under consideration was a mistake is obvious from the notice of intention to appeal to the circuit court.

It is claimed in argument that the undertaking given is a nullity, and that there is nothing to amend by. We cannot assent to this. All the essentials of an undertaking are found in the instrument. There are obligor and obligee,- a penalty and a condition. Its defect depends upon a fact *dehors*the obligation.

These views are not in conflict with the holdings of this court upon motions to dismiss appeals perfected in the district court while it was in existence, for failure to comply with the statute requiring a new undertaking to be given in the circuit court, within thirty days after its organization.

In such case there was no defect in the original undertaking to be cured or amended. The bonds given were appropriate and in accordance with the law when they were given; but by reason of the abolishment of the district court and’ the creation of the circuit court as a substitute therefor, it became necessary to require a new and different bond in the latter court for the protection of the appellee; and upon failure to comply with this express requirement, the court had no election but to dismiss the appeal, not for defects, informalities or mistakes, but for a failure to give the additional bond required by law as a condition precedent to the right or power of the court to hear and determine the cause.

The motion to dismiss the appeal is overruled, and leave is granted the defendants to amend within sixty days the defective instrument, with the written consent of the sureties to be annexed to and filed with the amended undertaking; or defendants may file in this court, by way of amendment, a new appeal undertaking, with sureties approved by the clerk.