
    Austin et al. v. Morris et al.
    
      Appeal and error — Bond—Mistake and amendment — Section ii363, General Code — Obligees names omitted from bond.
    
    1. If a litigant has intended to and in good faith taken steps to file an appeal bond with the clerk of court, who approves the same, and a mistake has been made therein in any respect, whether in form or substance, Section 11363, General Code, authorizes the appellate court, in furtherance of justice, to permit its amendment.
    2. Where such a bond has been filed with the clerk, but the names of the obligees have not been inserted in the blank space provided for that purpose, it is not error to permit the names of the obligees to be inserted in the space so provided.
    (No. 16870
    Decided November 22, 1921.)
    Error to the Court of Appeals of Ashland county.
    This cause originated in the court of common pleas in an action for partition. On final distribution of the fund, present plaintiffs in error attempted to charge the defendants in error with advancements made to the latter by one Albert Morris, deceased. The trial court found that such advancements were made, and out of the funds held for distribution charged the defendants with certain sums severally advanced to them by the decedent. The defendants thereupon gave notice of their intention to appeal the cause to the court of appeals, and the amount of the appeal bond was fixed in the sum of $300. Two appeal bonds were thereafter filed by Hattie Spafford and Ellis A. Morris, two of the defendants, each in the sum of $300. Each of these appeal bonds had the number and style of the case on the back thereof, but the names of the obligees were not written into the body of either bond. The form of each of these bonds was substantially the same, and a copy of one is sufficient to present the legal question involved. The appeal bond was given in the following form:
    “appeal bond.
    “Know all men by these presents, that we, Ellis Morris, Hattie Spafford and W. H. Spafford, are held and firmly bound unto.................... in the sum of three hundred 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.
    “Signed by us, and dated this .... day of ..........,19.....
    “The condition of the above obligation is such, that, whereas, said........................has taken an appeal from a certain judgment rendered against them in favor of said................... in the Court of Common Pleas, within and for the county of Ashland, in the State of Ohio, at the May term thereof, 1920, for the sum of.............. ............dollars, to the Court of Appeals fifth appellate district within and for the county aforesaid.
    “Now, if the said Ellis Morris, et al, shall abide and perform the order,and judgment of said Court of Appeals, and shall pay all money, costs and damages, which may be required of or awarded against them by said Court of Appeals, then this obligation to be void; otherwise to remain in full force and virtue in law.
    “Executed in presence of:
    ................ “Ellis A. Morris,
    ................. “Hattie Spafford,
    “W. H. Spafford.
    “Approved the above bond with the sureties thereto, this 6th day of October, 1920.
    “R. S. Sloan, "Clerk."
    
    In the court of appeals the plaintiffs moved to dismiss the appeal for the reason that no appeal bond with surety had been-filed as required by law and that the paper writing purporting to be an appeal bond was no bond. Thereupon the defendants Ellis A. Morris and Hattie Spafford asked the court that they be permitted to write into the two appeal bonds filed the names of the obligees, viz., Mary M. Landis, Emma J. Austin and Albert Eugene Morris, the plaintiffs in the action; whereupon the court of appeals overruled the motion to dismiss the appeal and sustained the motion to amend the bonds. The court of appeals thereupon heard the phase of the case pertaining to advánce-ments upon the merits, and finding there had been no advancements decided that feature of the case in favor of the defendants.
    'Whereupon error was prosecuted to this court.
    
      Messrs. McBride & Wolfe and Mr. H. T. Manner, for plaintiffs in error.
    
      Mr. H. L. McCray; Mr. C. P. Winbigler and Messrs. Kean & Adair, for defendants in error.
   Jones, J.

Section 12230, General Code, requires that an appeal bond shall be made “payable to the adverse party.” The several appeal bonds in this case were not so made. The names of the obligees had not been written into the bonds.' The bonds were therefore defective, and the sole question presented here is whether the court of appeals erred in refusing to dismiss the appeal and in permitting the amendment of the appeal bonds by writing therein the names of the obligees.

Section 11363, General Code, provides that “Before or after judgment, in furtherance of justice and on such terms as it deems proper, the .court may amend any pleading process or 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 * * *. When an action or proceeding fails to conform to the provisions of this title, the court may permit either to be made conformable thereto, by amendment.”

This section of the code has been effective since June 1, 1853, when this state first adopted its code of civil procedure. It is merely an extension of the old English statutes of jeofails which pertain to the amendment of civil pleadings. As will be observed from its reading it extends in Ohio not only to pleading but to process and proceeding as well. That the efforts or steps taken by a party litigant in his endeavor to perfect his appeal by giving an appeal bond constitute a proceeding amendable under this section has been frequently held by this court. The syllabus in the case of Irwin v. Bank of Beliefontaine, 6 Ohio St., 81, is as follows: “Steps taken by filing an appeal bond to vacate a judgment of the court of common pleas, and to transfer the action for trial to the district court, is a proceeding in an action; and the 137th section of the code, which authorizes courts to permit an amendment of a mistake, in any respect, in any proceeding, is applicable to appeal bonds; and mistakes therein may, by consent of sureties, be amended in the appellate court, or a new bond, by way of amendment, may be filed.”

Nearly twenty years later it was decided in the case of Negley v. Jeffers, 28 Ohio St., 90, that an undertaking filed by a party demanding a second trial, and approved by the clerk of the court, was a proceeding within the meaning of Section 137 of the Civil Code (Section 11363, General Code), and in furtherance of justice might be amended. An examination of that case will disclose that the requirement of a party giving an undertaking for a second trial was substantially the same as that required by a litigant in giving an undertaking for an appeal.

The same principle was followed in the case of Johnson v. Johnson, Exr., 16 Ohio St., 131, which held that a defective appeal undertaking was amendable under Section 11363, General Code, quoting the case of Irwin v. Bank, supra, to the effect that steps taken in filing an appeal bond constitute a proceeding in an action. If the steps taken by a litigant to file an appeal bond in a chancery case constitute a proceeding, to what extent may this proceeding be amended? Section 11363, General Code, is broad and comprehensive. It permits amendments to be made before and after judgment in furtherance of justice. The appellate court may amend a proceeding by adding or striking out the name óf a party, or by correcting a mistake in the name of a party, or a “mistake in other respects ” This section is a part of the remedial chapter governing our code of civil procedure, and Section 10214, General Code, requires that this, and other sections of our remedial code, “shall be liberally construed, in order to promote its object, and assist the'parties in obtaining justice.” In the case of Irwin v. Bank, supra, Judge Swan, in commenting upon the general section relating to amendments, stated at page 89: “The code authorizes an amendment when a mistake goes to the substance of the pleadings or proceedings. It further authorizes an amendment of a mistake in any respect. Broader and more efficient language could hardly have been used to vest this power. The only limit seems to be to cases where an amendment would not be in furtherance of justice.”

In this case the several bonds have indicia showing that steps had been undertaken in good faith to perfect an appeal of a case decided in the common pleas court. On the back of the bonds the style of the case and its number had been written. The bonds appear to have been in the usual printed form with blanks provided for writing in the names of the obligees and obligors. Furthermore, these bonds had a surety, and were approved by the clerk of the court. It is claimed, because the names of the obligeés had not been written in the blank spaces provided for that purpose, that there was here no such bond as would permit of amendment by the appellate court. It is commonly known that bonds of this character are usually provided in printed form, and their preparation often left to the clerk or to counsel in the case. The litigant himself ordinarily has nothing to do with the technical preparation of the bond. In this case there is nothing in the record to show that the appellants had done anything that would deny them “furtherance of justice.” If a litigant has intended to and in good faith taken steps to file an appeal bond with the clerk of the court, who approves the same, and a mistake has been made therein in any respect, whether in form or substance, Section 11363, General Code, authorizes the appellate court to permit its amendment if it be in furtherance of justice to the parties in the case.

Section 12232, General Code, is as follows: “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, with security to be approved by the court or its clerk. If such order be complied with, the cause shall be heard and determined as though it had not been made; but otherwise the appeal must be dismissed.”

This section is not inconsistent with Section 11363, General Code. One is a complement of the other. The latter section guards the interests of the appellant, the former the interests of the ap-pellee. The latter permits the appellant to have his bond amended by having its mistakes corrected in any respect, while the former permits an obligee to see that his bond is, secure if it be not sufficient in form or amount, or if the surety has removed from the state. Under these two sections of our remedial code the rights of both parties to the litigation are safeguarded, and it would seem that if the appellee under the former section could say to the court “my bond is insufficient, because the names of the ob-ligees are omitted,” or “the surety has removed from the state,” or “the surety is worthless,” or ‘‘there is a failure to supply a surety,” that if the appellee may secure the dismissal of the appeal for any of these reasons, the obligor should have opportunity to amend the bond where such action would do no injustice to any of the parties. In other states courts have exercised great latitude in permitting appeal bonds to be amended. So numerous are the reported cases sustaining the principle involved here that it would only extend this opinion if we should cite and comment upon them.

In refusing to dismiss the appeal and permit the appeal bonds to be amended the court of appeals did not err and the case is affirmed.

Judgment affirmed.

Marshall, C. J., Johnson, Hough, Wanamaker, Robinson and Matthias, JJ., concur.  