
    (November 12, 1913.)
    O. W. BROWDER, Respondent, v. JOHN ETCHERSOR, Appellant.
    [136 Pac. 612.]
    Appeal prom Justice’s Court — Dismissal op.
    1. Seld, -that the trial court did not err in dismissing the appeal.
    APPEAL from the District Court of the Fifth Judicial District for Oneida County. Hon. Alfred Budge, Judge.
    Action to recover for damages alleged to have occurred by the unlawful herding of the defendant’s sheep on plaintiff’s land. Judgment for plaintiff.
    
      Affirmed.
    
    MeDougal & Jones, for Appellant.
    The undertaking on appeal is statutory in form and sufficient as to the amount, being for the sum of $100 for costs on appeal and the sum of $160, double the amount of the judgment and costs in the justice court, for stay of proceedings. (Sec. 4933A, Rev. Codes; Finney v. Moore, 9 Ida. 284, 74 Pae. 866; Numbers v. Rocky Mountain etc. Tel. Go., 7 Ida. 411, 414, 63 Pae. 381.)
    The offer to substitute a cash deposit to cure any irregularities of the justice or voidable defect iu the bond should have been accepted by the court. Where an undertaking is merely defective and capable of amendment, the court should permit a new bond to be filed or accept a tender in cash in lieu thereof. (24 Cyc. 682; Watt v. Decker, 16 Ida. 184, 101 Pac. 253.)
    Davis & Evans, for Respondent.
    An order of the district court dismissing an appeal from a judgment of a probate court is nonappealable. {In re Paige, 12 Ida. 410, 86 Pac. 273.)
    The granting of this order by the district court dismissing the appeal from the justice court was a matter within the discretion of the district court; except in case of gross abuse, such exercise of discretion is not reviewable. (3 Cyc. 392-394.)
    Where an appeal is taken before the entry of judgment, such appeal must be dismissed. {Vollmer v. Nez Perce County, 7 Ida. 302, 62 Pac. 925.)
    No appeal can be taken from a judgment until such judgment has been entered. {Oliver v. Kootenai County, 13 Ida. 281, 90 Pac. 107.)
   iSULLIYAN, J.

This is an appeal from the judgment of the district court dismissing an appeal from a justice’s court.

It appears that an action was brought in the justice’s court to recover from the defendant damages for herding his sheep on plaintiff’s land and the justice entered judgment in favor of plaintiff for $50 damages and costs of suit. An appeal was taken, or sought to be taken, by the defendant to the district court. A motion was made in the district court to dismiss the appeal on the ground that the appeal had not been taken in the manner provided by law, the main contention being that an undertaking on appeal from the justice’s court had not been filed within the time provided by law.

Upon an examination of the record, we are satisfied that tbe judgment of the court dismissing the appeal must be affirmed and it is so ordered. Costs of this appeal are awarded to respondent.

Ailshie, C. J., and Stewart, J., concur.  