CUNNINGHAM et al. v. HOPKINS

CUNNINGHAM et al. v. HOPKINS. Where a motion is made in the County Court to dismiss an appeal, on the ground that . the undertaking filed is insufficient, and before the determination .thereof the other party offers to amend his undertaking: Held, that it is error to refuse to allow him so to do. Appeal from the County Court of Amador County. Action to recover a mining-claim by plaintiffs, Cunningham and Mears, before a justice of the peace. Judgment for defendant. Plaintiffs appeal to the County Court. Defendant moves for a dismissal of the appeal, on the ground that the undertaking of plaintiffs is bad. Plaintiffs then offer to file a good one. Afterwards, the Court refuses permission, and enters judgment of dismissal, from which plaintiffs appeal to this Court. Robinson, Beatty & Botts, for Appellant. Smith & Hardy for Respondent. [MAJORITY — Burnett, J., delivered the opinion of the Court—Murray, C. J., concurring.] Burnett, J., delivered the opinion of the Court—Murray, C. J., concurring. The plaintiffs brought this action before a justice of the peace, when judgment was given against them for costs, from which they appealed to the County Court. The appeal was dismissed upon the ground that the undertaking was insufficient, and plaintiff appealed to this Court. In the late' case of Bryan v. Berry et al., we held that “ where a mere defective undertaking has been bona fide given, and the appellant will file a good one before the case is submitted, this Court will allow him to do so.” In this case, the plaintiffs offered to amend the bond before the motion to dismiss was determined, and they should have been permitted to do so. Judgment reversed, and cause remanded.