
    JOHN S. RUSSEL and CHARLES M. MARVIN vs. SETH BARTLETT, Appellant.
    APPEAL PROM CIRCUXT COURT, DANE COUNTV.
    Heard July 19.]
    [Decided July 23, 1859.
    
    
      Appeal — Practice—Motions.
    Where it appeared that a party had in good faith attempted to take an appeal, hut through a mistake of the practice, had failed to give the requisite undertaking, on a motion to dismiss such appeal for that reason, the appellant appearing to resist the motion and offering then to give the proper undertaking : held, that he might do so and save his appeal.
    This was an action in chancery, commenced before the adoption of the code, but tried and judgment rendered after-wards. The appellant supposing that the appeal was to be perfected according to the law as it stood when the action was commenced, applied to the circuit court and obtained an order fixing the amount of the bond on.appeal at $200. This bond was given and the papers sent up to this court.
    
      S. U. Pinncy, for the respondent,
    moved to dismiss the appeal on the ground that no undertaking in the sum of $250, as required by the statute, had been filed or served upon the respondent.
    
      J. C. Hopkins, for the respondent,
    resisted the motion, and asked leave to file the necessary undertaking.
   By the Court,

Dixon, C. J.

It appears that the appellant, in good faith, attempted to take his appeal, but through the mistake of the practice in such cases, failed to file and serve a copy of the necessary undertaking. His application to do so at this time will therefore be granted, pursuant to § 4, chap. 139, of the Rev. Stat., 1858.  