
    The Propeller Ogontz v. Wick and Morgan.
    1. When an appeal is erroneously dismissed by the district court, and, at the same term, a motion is made by the appellant to reinstate the case on the docket, on the ground that the court erred in.dismissing the appeal — this is, in effect, a motion to vacate the order dismissing the appeal, and when such motion is continued to a subsequent term, and then overruled, the appellant is not barred of his remedy, if he file a petition in error in this court within three years after the overruling of such motion.
    3. Creighton v. Harden, 10 Ohio St. Rep. 579, and Bentley v. Dorcas, 11 Ohio St. Rep. 398, followe’d and approved.
    Error to the district court of Erie county.
    The original action was assumpsit brought by Wick & Morgan, in the court of common pleas of Erie county, accompanied by proceedings under the watercraft law.
    The precipe was filed, and the writ directing the seizure of the craft issued November 30, 1850. After successive continuances of the case, judgment for $735 27 and costs was rendered for the plaintiffs, Wick & Morgan, February 14, 1853; and the defendant below, plaintiff in error, gave notice of its intention to appeal the cause to the district court.
    March 19, 1853, an appeal bond was filed. The bond reads as follows:
    
      “ The State of Ohio, Erie county, ss. Know all men by these presents, that we, Isaac C. Walker and John Smith, are held and firmly bound unto Wick & Morgan, in the penal sum of fifteen hundred and twelve dollars to the payment of which well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors and administrators. Sealed with our seals, and dated this 19th day of March, A. D. 1853. The condition of the above obligation is such, that whereas the said propeller Ogontz has taken an appeal from a certain judgment rendered against it, in favor of the said Wick & Morgan, in the court of common pleas, within and for the county of Erie, in the state of Ohio, at the February term thereof, A. D. 1853, for the sum of seven hundred and thirty-five dollars and twenty-seven cents damages, and nineteen and TVo dollars, plaintiff’s costs of suit, to the district court within and for the county aforesaid. Now, if the said propeller Ogontz or its owners shall pay the full amount of said condemnation in said district court, and costs, in case a judgment shall be entered therein in favor of the appellee, then this obligation shall be void, otherwise in full force and virtue in law. Isaac 0. Walker, John Smith. Approved by me, March 19, 1853. Rice Harper, clerk.”
    At the April term, 1856, of the district court, to-wit, April 8th, the defendants in error, appellees, moved the court to dismiss the appeal, for the reason that the appeal bond was not in accordance with the statute. On the 11th of April, during the same term, the court decided that the bond was not in accordance with the statute. Whereupon the appellant, plaintiff in error, asked leave to file a new bond, which the court refused, and thereupon dismissed the appeal; and the plaintiff in error excepted, and moved the court to reinstate the cause, for the reason that the court erred in dismissing the appeal.
    This motion was continued.
    At the April term, 1857, of the district court, to-wit, April 17th, the “ motion made at the last term of this court, and continued to this term for consideration and decision, came on to be heard,” and the court “ do order that said motion so made by the defendant to reinstate this cause upon the docket, be overruled. To which ruling of the court the defendant excepted.”
    To reverse this ruling and judgment of the district court, the defendant below, plaintiff in.error, on the 20th day of March, 1860, filed a petition in error in this court, insisting that the district court erred:
    1. In holding that the appeal bond was insufficient.
    2. In refusing to permit an amended appeal bond to be filed, and in dismissing the appeal.
    3. In overruling the motion to reinstate the case ujoon the docket.
    
      W. J?. Stone, for plaintiff in error.
    
      
      H. Goodwin, for defendants in error.
   By the Court.

Under the rulings of this court, in Creighton v. Harden, 10 Ohio St. Rep. 579, and Bentley v. Dorcas, 11 Ohio St. Rep. 398, following Gardner v. Goodyear, 1 Ohio Rep. 170, the appeal bond in this case was sufficient, and the appeal ought not to have been dismissed.

The appellant moved, at the same term, to reinstate the case on the docket, on the ground that the district court erred in dismissing the appeal. This was, in effect, a motion to vacate the order dismissing the appeal. This motion was continued to the next term and then overruled. It ought to have been sustained. Three years had . riot elapsed between the order overruling the motion to vacate the .order dismissing the appeal and the time of filing this petition in error, and the plaintiff in error is not, therefore, barred of its remedy.

The order of the district court overruling the motion to vacate the order dismissing this appeal is reversed; and, proceeding to make the order which the district court ought to have made, it is further ordered that the order of the district court dismissing the appeal in this case be vacated and set aside, and the case reinstated on the docket for trial.  