
    APPEALS — BONDS.
    [Meigs (4th) Court of Appeals,
    December 12, 1914.]
    Walters, Sayre and Jones, JJ.
    Henry Shires v. Lydia and Robert Fesler.
    Appeal Bond, Regular Except Signed by Party and not Surety Amended or Renewed.
    Where steps have been taken by a party to give an appeal bond which is in proper form in every respect except that the same is signed by a party and not by a surety, and where such bond has been approved by the clerk, the court has authority to permit its amendment or renewal.
    [Syllabus by the court.]
    Appeal from common pleas court.
    Plaintiff filed his motion to dismiss the appeal upon the ground that the defendants filed no appeal bond, as required by law.
    The defendant, Lydia Fesler, also files her motion in this court for leave to amend the appeal, bond filed in this action, or for permission to give a new one to be approved by the clerk, and in connection with her motion makes profert of an appeal bond, in proper form and with sureties approved by the clerk.
    
      The first bond was in proper form and was signed by Lydia Fesler, one of the defendants, but was not signed by any surety. It was, however, approved by the clerk.
    
      B. J. Mauck and Ervin & Crow, for plaintiff.
    
      J. H. Hunt and A. D. Bussell, for defendant.
   JONES, THOMAS A., J.

The sole question is: whether this bond can form a basis for a new or amended bond; or whether this court has jurisdiction to permit an amendment or to require a new appeal bond.

Section 12226, G. C., provides that the appellant, “shall give an undertaking, with sufficient surety, to be approved by the clerk of the court,” etc.

Section 12232, G. C., as amended (103 O. L., 429) provides that, “When a surety in an appeal bond has removed from the state, or is not sufficient, or in form or amount the bond is insufficient, on motion, the court of appeals may order its change or renewal or that a new one be given, to be approved by the court or its clerk.”

Inasmuch as strict compliance was not had with this section, by the failure to have a surety sign the bond, it is claimed that the foregoing section having dealt particularly with the subject, we are confined to this section in the determination of our jurisdiction to allow the change or renewal of the bond.

In view of the decisions of our courts, we do not agree with that insistence.

It has been repeatedly decided that steps taken in giving an appeal bond constitute a “proceeding,” and that as such it is amendable to Sec. 11363, G. C., permitting its amendment. Negley v. Jeffers, 28 Ohio St. 90; Johnson v. Johnson, 31 Ohio St. 131; Irwin v. Bank, 6 Ohio St. 81; Ireland v. Ireland, 5 Circ. Dec. 277 (11 R. 565).

Section 11363, G. C., provides that, in furtherance of justice, before or after judgment, the court may amend any “proceeding” by adding or striking out the name of any party or by correcting a mistake in the name of a party or a “mistake in any other respect.”

It is not the appeal bond, but ‘ ‘ the steps' taken by filing an appeal bond” that constitute the proceeding. Irwin v. Bank, supra.

The mistake occurring in the steps so taken may therefore be subject to amendment.

Our courts have exercised great liberality in construing these remedial statutes, and especially in permitting amendments of appeal bonds, in furtherance of justice.

In the case of Shamokin Bank v. Street, 16 Ohio St. 1, there was not even an attempt to give an appeal bond. Here the bond was perfect in every respect, except a party signed it instead of a surety. The party attempted to file a proper bond and it was approved by the clerk as an undertaking. It has all the earmarks of an undertaking.

Applying the dicta of Welsh, J., in Shamokin Bank v. Street, supra, to such a state of facts the court would have undoubtedly held that, where a bona fide attempt had been made to give an undertaking, valid in every respect except as to the absence of a surety, there was such a proceeding that could be amended.

The motion to dismiss will be overruled, and the new bond tendered will be permitted to be filed.

Walters and Sayre, JJ., concur.  