National Bank v. National Bank

The statute provides that "Where there is a defect of substance or form in any appeal or writ of error bond, or motion to dismiss the same for such defect, the court may allow the same to be amended by filing in said Court of Civil Appeals a new bond, on such terms as the court may prescribe." Gen. Laws 1892, sec. 39, p. 32.

This cause is one transferred by this court to the Court of Civil Appeals under the fourth section of the Act of April 13, 1892. Gen. Laws, p. 24. It was dismissed in that court on the ground that the appeal bond was not made payable to all persons adversely interested; and under these facts the Court of Civil Appeals certifies to this Court the following question: "Is the Court of Civil Appeals empowered by said section 39 to permit the filing of a new appeal bond, curing the defects set out under the circumstances and facts herein before stated."

We see no reason to doubt the intention of the Legislature to make the statute in question applicable to such cases as were required, after its passage, to be transferred from this to a Court of Civil Appeals, as well as to cases in which appeals or writs or error might be directly brought before those courts after their organization.

Nor do we see any constitutional objection to giving effect to the statute in any case in which, under the law applicable to it, the right to prosecute a writ of error was not barred; for if the giving of the bond required by the statute be deemed a matter on which the jurisdiction of the court depended, the law would not be unconstitutional in that it permitted the appeal to be prosecuted under the new bond, if the same practical result might have been accomplished, at the time the statute was enacted, through writ of error.

If, however, at the time the statute was enacted the right to have the judgment revised in any manner had been lost by of time, then the Legislature could not revive that right. Taylor v. Duncan, Dallam, 514.

When, under the statute, parties are permitted to file a new bond, through which the rights of parties adversely interested, but to whom the former bond was not made, may be affected, the order allowing this to be done should fully protect the rights of such parties by requiring notice to be given to them.

This opinion will be certified to the Court of Civil Appeals from which the certificate came.

Delivered June 1, 1893.