#### Grant vs. The Connecticut Mutual Life Insurance Company. (Motion.)

Appeal to Supkeue Oouet : *When appeal perfected*— *Power of circuit and supreme courts in case of defective*undertaking— *Waiver of right to object to undertaking.*

1. Since ch. 264, Laws of 1860 (sec. 29), where an undertaking on appeal is defective (the notice of appeal having been given in good faith), it may be amended, or a new one substituted, by motion in this court or the court below.

2. The notice of appeal and original undertaking, in due form, having been duly filed and served, and the record returned to this court, the *388appeal is perfected, and the cause may he noticed for argument hy either party, although exceptions have been taken in the court below to the sureties in the undertaking, and the amended or new undertaking, approved by that court, has not yet been filed here.

3. If the sureties fail to justify, or a new undertaking with sufficient sureties is refused, this court may dismiss the appeal, or at its discretion grant further indulgence to the appellant.

4. The fact that respondent excepts to the sureties in the court below is not a waiver of his right to notice the cause for argument here; but perhaps such notice would be a waiver of any right *thereafter*to'take such exception or compel the sureties to justify.

APPEAL from tbe County Court of *Milwaukee*County.

Tbis court having ordered a continuance of tbis cause until tbe next term, on appellant’s motion, tbe respondent now moves to vacate tbat order.

*Garys & Cottrill,*for tbe motion.

*Waldo & Van Valkenbnrg, contra.*

DixoN, C. J.

Tbis cause was continued until tbe next term upon affidavit and motion made *ex parte*by counsel for tbe appellant, tbe insurance company, on tbe ground tbat tbe appeal was not perfected and return made to tbis court eight days before tbe commencement of tbe present term, so tbat tbe cause was not properly noticed for argument at tbis term, and was irregularly placed by the clerk upon tbe calendar. Tbe affidavit seeming to establish tbis ground for continuance, and it being believed tbat there could be no mistake or dispute about tbe facts, tbe motion was granted, with leave, however, for tbe plaintiff to move to vacate tbe order, if tbat *should be thought*advisable or proper. Tbe plaintiff now moves for tbat purpose, and for leave to submit the cause at tbis term, and tbat tbe appellant be required to do so, or tbat tbe appeal be dismissed.

Examination now shows tbat there was a mistake in tbe affidavit upon which tbe continuance was ordered, or a statement in it which led tbe court into a mistake respecting tbe facts. It was supposed, from a statement contained in tbe affidavit, *389tbat no return bad been made to tbis court eight days before tbe commencement of tbe term wben tbe cause was noticed for argument here by tbe plaintiff, wbo is tbe respondent in tbe appeal. In tbis we were in error. The return was made, and tbe papers filed with tbe clerk of tbis court, on tbe 25th day of May, eleven days before the commencement of tbe term, and three days before notice of argument was served by tbe plaintiff, as prescribed by tbe rules of tbis court, which require eight days’ notice. Tbe facts touching tbe appeal are briefly these. Notice of appeal and copy of undertaking in due form were served upon tbe plaintiff’s attorneys on the 5th day of May, and on tbe 6th, tbe original undertaking, with tbe notice, were filed with tbe clerk of tbe court below, as required by law. Laws of 1860, cb. 264, sec. 29. Within ten days thereafter, tbe respondent excepted to tbe sufficiency of tbe sureties in tbe undertaking, in tbe manner prescribed by section 30 of tbe same act; and such proceedings were thereupon bad,- tbat a new undertaking was made, and tbe sureties therein were examined, and their responsibility was justified before tbe judge of tbe court on tbe 27th of May. Tbe certificate of approval and of tbe sufficiency of tbe sureties was indorsed upon tbe undertaking and signed by tbe judge on tbe 27th, but tbe undertaking was not filed with tbe clerk of tbat court until tbe 30th of May. It was transmitted to and filed with tbe clerk of tbis court on tbe 6th of June.

Upon tbis state of facts tbe only question arising is, whether tbe cause was in tbis court by appeal on tbe 28th of May, wben it was noticed for trial by tbe respondent, and so tbat it could be properly noticed. We are of opinion tbat it was, and tbat tbe notice was regular, and tbe cause properly entered on tbe calendar. Tbe original undertaking which, as we have said, was in due form, was undoubtedly sufficient to authorize tbe return made by tbe clerk of tbe court below, and to invest tbis court with full jurisdiction. It has been frequently held by tbis court since tbe passage of tbe act above referred to, wben tbe undertaking *390given on appeal is defective or not in accordance with law, that the appellant may apply here, and that this court possesses the power of amendment, and may direct or allow a new or sufficient undertaking to be executed. Section 17 of the act confers this power upon the court below whenever a party shall in good faith have given notice of appeal, and the same power, it has been held, is possessed by this court. The notice of appeal, therefore, given in good faith, will confer jurisdiction upon this court, so that all other omissions or mistakes may be supplied by the power of amendment.

But this cause was regularly here without resort to this power. The undertaking was regular in form, and *prima faoie*sufficient. The appeal could not have been dismissed, at all events not until after the sureties had failed to justify, or until a new undertaking with sufficient sureties had been refused. And in that case this court might, in its discretion and under proper circumstances, have granted further indulgence to the appellant. The cause was here, therefore, so as to be properly noticed for argument by the respondent; and the real question would seem to be whether she had waived the right to do so by having excepted to the sufficiency of the sureties in the court below. The statute gave her that right, and we do not think her having exercised it can constitute such waiver. She might expedite the hearing here, and at the same time except to the sufficiency of the sureties in the court below; unless, indeed, the case had been such that her proceedings here would be held a waiver of any objection to the sufficiency of the undertaking or of the sureties there. If she had attempted to except to the sufficiency of the sureties there, or to compel them to justify, after having noticed the cause for argument here, the notice might well, perhaps, have been held a waiver of the exceptions, or of the right to except; but as it is, we think there was no waiver.

The order continuing the cause must be vacated, and the cause submitted to this court upon cases and briefs, to be filed *391and. furnished witbin sixty days from the date of this order, or otherwise the appeal will be dismissed.

*By the Court.*— Ordered accordingly.

■Cole, J., being a policy holder in the defendant company, did not sit in this case.