Potter vs. Baker and others, 4 Paige Ch. 290

The Chancellor. The sixtieth

section of the title of the revised statutes relative to the court of chancery, (2 R. S. 178,) directs tiie appeal from an order or decree of a vice chancellor to be made by serving notice of such appeal upon the solicitor of the adverse party, and on the register or clerk with whom the order or decree is entered. This notice should be in writing ; and if only a part of the decreé is appealed from, the notice should specify such part.

The notice of the appeal which the solicitor of the original proprietors of the school house had in this case, by seeing the appeal bond when it was presented to him in his character of master in chancery, was not a notice served on the solicitor, within the spirit and intent of the statute. A mere constructive notice, or a notice which might put the adverse party on inquiry, is not sufficient in such a case.

I am satisfied, however, that notice of the appeal to the original proprietors was not necessary, in this case, to render the appeal valid; as they were not the adverse parties to the appellants in this particular appeal. If the first appeal should be dismissed, no question could arise between the original proprietors and the trustees of school district No. 2, on this last appeal; as it is not broad enough for that purpose. The claim of the original proprietors to the whole fund will be disposed of on the first appeal. And if they succeed, the whole case will be disposed of.

But if they fail, then the second appeal will enable the two school districts to settle their respective claims to the fund, as between themselves. The appeal bond, however, was defective, as there was but one surety. (Van Wezel v. Van Wezel, 3 Paige’s Rep. 38.) And the motion to dismiss the appeal must be granted, unless the court has the power to relieve the appellants, by an amendment of the bond, or otherwise.

The proceedings upon appeals from the vice chancellors, except as to the time within which the appeal must be entered, by filing and serving the requisite notices, are regulated by a rule of the court, and not by statute. I am therefore inclined to think that this court has the power to relieve the appellant, independently of any statutory provision. (See Rule 126, and 1 Paige’s R. 391.) It is not necessary, however, to decide' that question 'here; as I am satisfied this case comes within the 34th

section of the title of the revised statutes which contains the general miscellaneous provisions concerning suits and proceedings in civil cases. (2 R. S. 556, § 34.) The counsel for the respondents supposes that the amendments authorized by that

section of the statute, can only be amendments of mere formal defects; such as are described in the next preceding section. But the legislature never contemplated an actual amendment of a mere formal defect in the bond. Such defects are cured by the 33d section, without the necessity of an application to the court.

The legislature having thus disposed of this class of cases, they intended, in the language of the re-visors, in their note to the 34th section, to carry out the principle, by providing for an actual amendment of the bond, in matters of substance, where an error had occurred through in-ad vertence, or from a misapprehension of the law. In the present case there was no intention to delay the proceeding of the adverse party, by putting in an insufficient or defective bond.

The appellant’s solicitor had also some reason to suppose his practice was regular; as an officer of the court, whose duty it was to see that the bond was correct, approved of the same. The statute having authorized the court to amend the bond, where it is defective in any respect, this is a very proper case to grant such relief. The appeal bond may therefore be amended, by adding another surety thereto, with the written consent of the present obligors; which consent must be annexed to and filed with the bond. The appellants must pay the costs of this application to dismiss the appeal.

And they are to have thirty days to amend the appeal bond. If it is not done within that time, their appeal is to be dismissed, with costs.