Flowers v. Wayne Probate Judge ( 1919 )

Bird, C. J.

(dissenting). I am unable to agree with the conclusion reached by Mr. Justice Moore in this case. The notice of appeal and bond were filed within the 20 days allowed by law. There is no claim that the notice was defective but it is conceded that the bond was defective because no justification of the surety was indorsed thereon. Three days after the bond was filed the defect was called to plaintiff’s attention, whereupon he at once caused it to be corrected, but not until after the 20 days had expired. It was, in my opinion, just such situations as this that moved the legislature to enact the following provisions :

“(12486) Sec. 9. No appeal shall be dismissed on account of any informality or imperfection in the bond, affidavit or other proceedings, for the taking of such appeal, if plaintiff shall either by amendment, or by furnishing a new bond, affidavit or other paper, supply the deficiency or defect.

“(12487) Sec. 10. Whenever a bond is or shall be required by law to be given by any person, in order to entitle him to any right or privilege conferred by law, or to commence any proceeding, it shall not be necessary for such bond to conform in all respects to the form thereof prescribed by any statute, but the same shall be deemed sufficient if it conforms thereto substantially, and does not vary in any matter to the prejudice of the rights of the party to whom or for whose benefit such bond shall have been given.

“(12488) Sec. 11. Whenever such bond has been heretofore, or shall hereafter be given, and shall be defective in any respect, the court, officer, or body who would be authorized to receive the same, or to entertain any proceedings in consequence of such bond, if the same had been perfect, may, on the application of all the obligors therein, amend the same in any respect, or may, on the application of the person required to give such bond, allow a new one to be substituted in the place thereof, bearing date at the time when such bond was required to be given, and such bond shall thereupon be deemed valid from the time of the execution of such defective bond. When application is made to amend, said court, officer, or body shall have power to amend such bond in any respect, and without regard to the particular amendment applied for, so as to make said defective bond such a one as might have been required when the latter was given. When a new bond is allowed, it shall be such in form, penalty, and other respects, as might have been demanded when the defective bond was given.” 3 Comp. Laws 1915, §§ 12486-12488.

It is clear that these sections contemplate that a defective bond may be corrected or a new one filed, and it is equally clear that when this is done, it shall have relation back to the time when the original or defective one was filed, and have the same force and effect it would have had if no defect had existed. If it does not mean this, why was the provision inserted in section 12488 that the court may “allow a new one to be substituted- in the place thereof, bearing date at the time when such bond was required to be given, and such bond shall thereupon be deemed valid from the time of the execution of such defective bond” Indeed, it would be difficult for language to make it plainer. This section said to plaintiff, in substance: “Correct the defect in your appeal bond or file a new one, and after doing so you may date it back within the 20 days provided for appeal.” If we hold that plaintiff’s corrected bond came too late to authorize an appeal, how will we construe this provision and what will we say is the meaning of the words “such bond shall thereupon be deemed valid from the time of the execution of such defective bond?” It is obvious that this legislation was passed for the purpose of preventing appeals being lost by reason of defective bonds, where the opposite party is not thereby prejudiced, and it seems to me that these sections are directly applicable to the present case. If we are to say that they are not available in any case where the corrected or substituted bond is not filed until after the time for appeal has expired, then the legislation is in vain because if one discovers the defect before the time for appeal has expired he could file a new bond without the aid of the statute.

Some point is made by the respondent in his return that he was never requested to fix the penalty of the bond, and the inference to be drawn therefrom is that had he been so requested he would have exercised his discretion under section 14152, and ordered a bond in compliance therewith. This section provides that where a final account is. the subject of appeal the court “may, in its discretion, fix the penalty of the bond in such sum as will cover the amount found due by the probate court upon examination of such account.” * * * Had the defendant intended to exercise his discretion in this appeal and require a compliance with the foregoing provision, he should have frankly advised plaintiff to that effect, when he tendered the corrected bond. The only reason respondent assigned for refusing to file the bond was because no justification by the surety was indorsed thereon. There is no claim that a bond in the penalty of $300 is not sufficient to take care of the costs of appeal, and inasmuch as plaintiff has on file in his court a $15,000-bond, and less than $9,000 are here involved, the estate would not be seriously prejudiced by reason of a failure to invoke this provision.

I am impressed that plaintiff has done everything which the statute requires him to do in order to effect his appeal. The trial court was of that opinion and I think its order should be affirmed.