concurring:
With some reluctance I concur in the judgment, for the reason that this court so construed the law in the case of Marx v. Lewis, 24 Nev. 306.
The construction given follows more strictly the letter than the spirit of the practice act. In using language stating that an appeal shall not be effective for any purpose unless an undertaking is given, the legislature evidently wished to protect the respondent in the recovery of his costs if the appellant was unsuccessful on the appeal. By the use of this language it is doubtful if the lawmakers had any intention or purpose of preventing a respondent from waiving the provision, which was inserted for his benefit, and especially so when proper effect is given to section 71 (Comp. Laws, 3166), which provides that "the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the parties.”
Clearly it was intended to give the respondent the right to insist upon being protected by a bond on every appeal, but no good reason appears to me why he may not waive this provision for his benefit. A waiver might be of material advantage to the appellant, and save him the inconvenience of furnishing an undertaking, and at the same time work no injury to the respondent, if he is satisfied that the appellant is able financially to meet any judgment which may be rendered or affirmed against him by the appellate court. Although having high regard for the great learning and ability of the Supreme Court of Massachusetts, I am unable to see the weight of the conclusion reached in the case cited from that *485state, holding that the failure to require an undertaking might lead to frivolous appeals, nor that the most meritorious cases could not be appealed without the requirement of an undertaking, if waived, while the most frivolous may be appealed by giving a small bond. As held by this and other courts, appeals will be dismissed where there is no real controversy between the parties. Apparently that court modified its views in a later case, and held that a motion to dismiss an appeal upon the ground that no bond to the adverse party had been filed as required by the statute came too late after the first term. (Wheeler & Wilson M. Co. v. Burlingham, 137 Mass. 581.)
So far as I am aware, an appeal bond is required in all the state and appellate courts. Nevertheless, it has often been held that the undertaking and other requirements may' be waived. The word "waiver” implies that something may be relinquished.
In Kingsbury v. Buckner, 134 U. S. 681, 10 Sup. Ct. 648 (33 L. Ed. 1047), the court said: "It is further contended that the Supreme Court of Illinois could not entertain the appeal from the decree dismissing the cross-bill of Buckner and wife without an appeal bond being executed by them, and that it was not competent for Beckwith to waive the giving of such bond. * * * A mere failure to execute the bond within due time may be ground for dismissing an appeal, but does not deprive the court of the right to proceed to a determination of the appeal. So here, the waiver by the infant’s guardian ad litem and next friend of a bond by Buckner and his wife upon their appeal—the latter having waived an appeal bond on his part—did not affect the jurisdiction of the court. And such is the rule of practice in the Supreme Court of the United States. (Edmonson v. Bloomshire, 7 Wall. 306, 311, 19 L. Ed. 91; Richardson v. Green, 130 U. S. 104, 114, 9 Sup. Ct. 443, 32 L. Ed. 872; Evans v. State Bank, 134 U. S. 330, 10 Sup. Ct. 493, 33 L. Ed. 917.) The cases cited by counsel from the latter court do not announce any different rule.”!
In Dillinghan v. Skein, Fed. Cas. No. 3,912a, Hempst. 181, it was said: "The parties having appeared before that court, and the appellee making no objection that an appeal bond *486had not been given, thereby waived it; and the absence of an appeal bond in no manner affected the jurisdiction of the court.”
It was held in Ross v. Tedder, 10 Ga. 426, that it was competent for the parties to appeal by consent without giving a bond, and in Gardner v. Investment Co., 129 Cal. 528, 62 Pac. 110, that by joining in a stipulation for additional time defects in a single undertaking given on two distinct appeals were waived.
In Weidner v. Matthews, 11 Pa. 336, Norris v. Monroe, 128 Mass. 386, and Engle v. Rowan (Tex. Civ. App.) 48 S. W. 757, it was held that objections to recognizance on appeal must be taken within a reasonable time or they will be considered as waived.
In my judgment, if the question were before this court for the first time, a construction opposite to the one given in Marx v. Lewis, supra, ought to be applied, but under the circumstances it would be better for the legislature to amend the statute.