
    Brock v. Manatt.
    Where, in an action commenced before a justice of the peace, a bond for an appeal had been filed and approved by the justice, which bond was defective in describing the plaintiff as defendant, and the defendant as plaintiff: and while a motion to dismiss the appeal was pending in the District Court, the appellant asked leave to file a new bond, which was refused, and the court sustained the motion, and dismissed the appeal.
    
      Selct, that the District Court, under section 2511 of the Code, should have -allowed a new bond to be filed, and that the dismissal of the appeal was error.
    
      Appeal from the Poweshiek District Gourt.
    
    Brock brought suit against Manatt, before a justice of the peace. Trial was bad on the 23d of September, 1854, and judgment rendered against the plaintiff on the 26th of the same month. ■ On the 29th, as appears from an entry in the transcript of the docket of-the justice, notice of appeal was given, and under date of October 16, 1854, appeared the following entry:
    “ Selah S. Brock appeared to day, at the office of the undersigned, a justice of the peace in Bear Greek township, and returned the bond, with sureties, for' the appeal to be taken as above notified. Charles Comstock, J. P.”
    A bond appeared- among the papers of the same date with the above entry, which is tested by thé justice, but, in the body of the bond, the plaintiff is described as defendant, and the defendant as plaintiff, and there is no indorsement of the filing of the bond by the justice. In the District Court, the defendant moved to dismiss .the appeal, for the following reasons:
    1. The appeal was not perfected within twenty days.
    2. There is no bond returned in this case, if any was ever filed in the office of the justice.
    3. The ajipeal not having been allowed on the day on which judgment was rendered, notice should have been served on defendant, as required by section 2341 of tbe Code.
    While this motion was pending, the plaintiff aslced leave to file a good and sufficient bond, or to correct the error of misplacing the parties in the bond-on file, which the court refused, and thereupon the motion was sustained, and the appeal dismissed.
    It appeared, further, that' the plaintiff, during the same -■day that the motion to dismiss the appeal was pending, filed -an affidavit, alleging that the appeal was taken in good faith, and until he came into the District -Court for trial, he supposed the bond was proper; but, as it does not appear that this affidavit was made until .after the determination of the -motion to dismiss the appeal, it is not regarded by the court. The plaintiff appeals to this court, and assigns as error, the •refusal to allow him to file a new bond, and the dismissal of the appeal.
    
      W. Penn. Glarhe, for the appellant.
    
      Glarlc & Brother, for the appellee.
   Isbell, J.

The only question that ’is made to the court by the argument of counsel, and which it is necessary for us ■to consider, is, whether any bond was filed in this case. Eor it is assented to by appellee, that, if there was a bond at all, it was filed in time. And, also, that if it was a defective 'bond, instead of no bond in this case, the court should have allowed plaintiff to substitute a good and sufficient bond, mnder section 2511 -of the Code.

It is urged by appellee, that another suit had been -pending about the same time, before the same justice, between «the same parties, in which the plaintiff here was in fact defendant, and the defendant here was in fact plaintiff, and -that the bond was in point of fact an appeal bond in that '¡cause, and not in this. However this may be,- and however .much light the District Court may have had on this subject, we find nothing to justify this statement in the record, and cannot act on mere outside statements, Tbe transcript shows,, at least, that a bond was returned to tbe justice in this case,, with sureties, in accordance with a notice of appeal before given, and this bond bears date tbe same day of tbe entry showing these facts, is properly attested by tbe justice, and is found among tbe papers. Tbe insertion of tbe names of' tbe parties is a mistake that, by a slight inadvertence, could easily creep into tbe bond; and we conclude that, in this state of tbe case, on motion to dismiss tbe appeal for want of a bond, without some showing of fact, that tbe bond was for tbe ¡impose of appealing another cause, or that another cause existed to which it might properly apply, it was tbe duty of tbe court,, on being so moved, during tbe pendency of tbe motion to dismiss, to have regarded this bond, so appearing among the papers, and so identified with them, as a defective bond, rather than no bond in tbe case,, and to have allowed a perfect bond to be supplied, under section 2511 of tbe Code,

Judgment reversed, and cause remanded.  