Territory of Montana v. Milroy , 7 Mont. 559 ( 1888 )

De Wolee, J.

The appellant was. tried and convicted ' in the probate court of Deer Lodge County for obstructing the public highway, and fined in the sum of twenty-five dollars. From this judgment he appealed to the district court of Deer Lodge County. When the case came up in that court, the county attorney moved to dismiss the appeal, because no sufficient appeal bond, as required by the territorial statute, had been filed. Before this motion wras decided, the defendant offered to file a • new undertaking on appeal, in conformity with the requirements of the statute. This, the court refused to allow, sustaining the motion to dismiss; thus affirming the judgment of the probate court. To reverse these rulings of the district court, this appeal is prosecuted.

Section 510 of the third division of the Compiled Statutes of Montana states what an appeal bond in a criminal case shall contain, when a person has been convicted in the probate court and takes an appeal to the district court; and one of the requirements is that “ he will appear in the district court on the trial therein.” This bond or recognizance filed on appeal in this case left out this provision, but was in other respects in conformity with the statute. It is contended on the part of the appellant that the offense of which he was found guilty in the probate court was only a misdemeanor; and as section 292 of the third division of the Compiled Statutes of the territory provides that misdemeanors may be tried by the court without the presence of the defendant, where an undertaking has been executed to pay any fine and the costs that may be adjudged against the defendant in such action, that such an undertaking was filed in this case, and the requirements of the law substantially complied with, although it omitted the condition to appear in the appellate court. Secondly, the appellant contends that, if the bond he gave was irregular in failing to comply with the requirements of the statute, he should have been allowed to amend in the district court, when the informality of the bond was pointed out. The respondent controverts both of these propositions. We think the position taken by the appellant on both propositions the better view of the law, and giving effect to section 292 of the Criminal Practice Act, as well as to section 510 of the same act, that the bond filed was a substantial compliance with the statute, and could have been enforced against the sureties on the recognizance. We also think the appellant, on his motion, should have been permitted to amend, if the bond on file was defective. Section 407 of the code (Criminal Practice Act) provides that an appeal shall not be dismissed for any informality or defect in the taking thereof. The defect or omission in the present bond at most was only an informality. The authorities are numerous which hold that in a civil suit a bond or undertaking may be amended on leave, and we have been referred to no authority holding to the contrary. We cite the following authorities on this point: Wells on Jurisdiction, sec. 143; Hayne on New Trial, sec. 214; Howard v. Harman, 5 Cal. 78; Billings v. Roadhouse, 5 Cal. 71; Coulter v. Stark, 7 Cal. 244; Rabe v. Hamilton, 15 Cal. 32; Irwin v. Bank, 6 Ohio St. 81; Johnson v. Johnson, 31 Ohio St. 131; Cunningham v. Hopkins, 8 Cal. 34. In the latter case, the very point presented by the record in this case was decided; the opinion holding that it was error not to allow an amendment to an undertaking, if asked. The supreme court of Montana, also, in the case of Pierse v. Miles, 5 Mont. 549, held the same doctrine.

Judgment reversed.

McConnell, C. J., concurs.