I am unable to concur in the views expressed by the maj ority of 'the court that the appeal in this case should be-dismissed, and I will briefly state my reasons for such dissent.
It is quite clear from the affidavit of appellants’ counsel that the failure to file and serve an undertaking in this case at the time the notice of appeal was served was an inadvertence on the part of the appellants’ counsel, in my judgment, and it is the duty of this court, under the power conferred upon it by the statute, to-allow the undertaking prepared by the appellant to be served and filed in this case as of date of the service of the notice of appeal, upon such terms as the court may deem just.
The provisions of our Code relating to appeals was evidently taken from a similar statute -of the state of Wisconsin, and is practically a copy of such statute, and from a careful examination of the decisions of the Supreme Court of that state I am satisfied that that court has uniformly held that upon the service of notice of appeal the Supreme Court acquires jurisdiction of the case to the extent necessary to grant any relief that may be required, in case of failure to serve and file an undertaking on appeal.
It will be observed that section 441, Code of Civ. Proc., provides : “An appeal must be taken by serving a notice in writing. * * * The appeal shall be deemed taken by the service of the notice of the appeal, and perfected on service of the undertaking for costs, or the deposit of money instead, or the waiver thereof, as hereinafter *606prescribed.” It will be observed the language is: “The appeal shall be deemed taken'by the service of the notice of the appeal.”
And section 445 provides: “To render an appeal effectual for any purpose, an undertaking must be executed.. * * *” Clearly, this indicates that an appeal has been taken, but that it shall not be effectual for any purpose — that is, so far as reviewing the decision of the court appealed from is concerned — until and undertaking shall be executed on the part of the appellant.
And section 461 provides: “When a party shall in good faith give notice of appeal, and shall omit, through mistake or accident to do any other act necessary to perfect the appeal or make it effectual, including the giving of a proper undertaking for costs and damages, * * * the court from which the appeal is taken, * * * or the Supreme Court, or any one of the justices thereof, may permit an amendment, or the proper act to be done, including the giving of a new undertaking, on such terms as may be just.”
The clause, “including the giving of a proper undertaking for costs and damages,” and the clause, “including the giving of a new undertaking,” were inserted in the section by the revisers of the Code in 1903. Prior to that time, the section was adopted by the Legislature of this state and made a part of the appellate proceedings provided for in section 5235 of the Compiled Laws of 1887.
The case of Maxwell v. Wessells et al., 7 Wis., 103, is directly in point in the case at bar. A motion to dismiss the appeal in that case was made upon the ground that no copy of any bond or undertaking on appeal had been served upon the attorneys for the respondent, as required by section 250 of the Code, and the court in its opinion saj^s: “For the purpose of resisting the motion to dismiss the appeal, the counsel for the appellants has filed an affidavit, wherein he states that he made copies of the undertaking and of the notice of appeal, and gave instructions to Wm. B. Jarvis to serve them as required by law, and that, if they have not been served, it is owing to the mistake of the said Jarvis, and not to an intentional neglect to comply with the provisions of the Code referred to. And the counsel, in his affidavit, requests that, *607if this court shall be of opinion that he ought to serve a copy of said undertaking upon the attorneys of the respondent, that he have leave of court to make the service. If a copy of the undertaking had been served upon the adverse party, and proper evidence of that fact produced before the motion to dismiss the appeal on that ground had been submitted, we might well have been called upon to determine, in passing upon the motion to dismiss, whether the original mistake or omission had not been cured. But this not having been done, the appellant has not placed himself in a position to resist the motion, and the appeal must be dismissed.”
It will be noticed in the case at bar that the appellants had filed and served upon the respondent’s counsel a copy of the undertaking, and had made a motion in this court for leave to file and serve a copy of the undertaking as of the date of the service of the notice of appeal, prior to the motion made to dismiss the appeal.
In the case of Grant v. Connecticut Mutual Life Ins. Co., 28 Wis. 387, the learned Supreme Court of Wisconsin, speaking by Chief Justice Dixon, held, as appears by the headnote, that: “Where an undertaking on appeal is defective (the notice of appeal having been given in good faith), it may be amended, or a new one substituted, by motion in this court or the court below.” And in discussing this question that learned judge says: “It has been frequently held by this court since the passage of the act above referred to, when the undertaking given on appeal is defective or not in accordance with law, that the appellant may apply here, and that this court possesses the power of amendment, and may direct or allow a new or sufficient undertaking to be executed. * * * The notice of appeal, therefore, given in good faith, ztill confer jurisdiction upon this court, so that all other omissions or mistakes may be supplied by the pozver of amendment.”
In White v. Polleys, 20 Wis. 503, 91 Am. Dec. 432, it was held by the Supreme Court of Wisconsin, as appears by the headnote, that: “An appeal will be dismissed because a copy of the *608undertaking was not served with the notice of appeal, if the motion is made in time. It is too late to make such a motion after a cause has been reached on the calendar and submitted by the' appellant, in the absence of counsel on the other side.” It will be noticed in that case that the court regarded the appeal as properly pending in the court, notwithstanding that no copy of the undertaking was served with the notice of appeal, as required by the statute.
In the case of Architectural Iron Works v. City of Brooklyn, 85 N. Y. 652, it was held by the Court of Appeals of New York, as appears by the headnote, that: “Where, however, notice of appeal was served in good faith, without giving an undertaking for costs, in reliance upon an order of the court dispensing therewith, held, that the neglect should be deemed excusable and that the omission might be -supplied. Section 1303.”
The court in its opinion says: “The notice, however, was given seasonably, in good faith, and under circumstances which show that the omission to give the requisite undertaking was due to a reliance upon the order of the City Court” (which order was held invalid), “and in some measure, perhaps, to the failure of the respondent to prosepute its appeal threfrom. The neglect should be deemed excusable, and the omission may now be supplied. Code, § 1303.” And the Court of Appeals made an order granting the motion, unless appellant, within 20 days, filed and served an undertaking in the form required to perfect the appeal under section 1326 of the Code of Civ. Proc., and paid $10 costs, in which case motion denied.
Section 1303 referred to reads as follows: “Where the appellant, seasonably and in good faith, serves the notice of appeal, * * * but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or. to do any other act, necessary to perfect the appeal, * * * the court * * * may, in its discretion, permit the omission to be supplied, or an amendment to be made upon such terms as justice requires.” Section 1326 cited is not material in this case
It will thus be seen the Court of Appeals assumed that the appeal was properly pending in that court for the purpose of *609entertaining the motion for leave to serve and file an undertaking, notwithstanding no undertaking in any form had been previously served or filed, in effect overruling the decisions cited in Bonnell v. Van Cise, hereafter referred to.
I do not concur in overruling the decision of this court in the case of Mathers v. Darst, 11 S. D. 480, 78 N. W. 954, as in my judgment the decision of the court was clearly .right under the facts disclossed by the record in that case. It appears from the statement in the opinion that an undertaking had been executed and filed, but not served upon the respondent’s counsel, and that the motion of respondent to -dismiss the appeal was made nearly four months after the. submission of the case to this court upon the mei'its. The motion was denied. It will be observed, therefore, that -an undertaking had been executed and filed at the proper time, and that the -appellant had failed to serve a copy of the undertaking with his notice of appeal, and that the motion. to dismiss was not made until nearly four months after the case had been submitted to this court. It is clear, therefore, that as an undertaking had been in fact executed and filed with the clerk the court had acquired jurisdiction of the appeal.
The decision of this, court, therefore, in the case of Mathers v. Darst, supra, is clearly sustained by the Wisconsin Supreme Court, and by the Court of Appeals of New York, under statutory provisions relating to appeals quite similar to our own. In the opinion in the Darst Case, this court inadvertently omitted to state, in addition to the words, “that an undertaking had been executed,” the words, “and filed,”' after the word “executed.”
The clauses inserted in section 461 by the revisers of the Code were evidently intended to remove any doubt as to the jurisdiction of the Supreme Court to permit any amendment or act to be doiie necessary to perfect an appeal, in effect assuming that the Supreme Court had jurisdiction of the appeal by the service of notice of appeal, and the added clauses clearly indicate that in the opinion of the revisers the Supreme Court had jurisdiction of the appeal where notice has been served, to the extent necessary to permit the performance of all acts necessary to perfect the *610appeal, and that by the added clauses they intended to remove any doubt as to the power of this court to permit an undertaking to be filed, where one had been entirely omitted. Fullerton Lumber Co. v. Tinker, 21 S. D. 647, 115 N. W. 91.
In view, therefore, of the language of the section of our Code before referred to, as amended in 1903, and the decisions of the Supreme Court of Wisconsin and the Court of Appeals of New York, in my judgment the power of this court to make an order that the appellants’ undertaking may be served and filed nunc pro tunc as of date of the service and filing of the notice of appeal, such application having been prior to the motion to dismiss, is clear and ought to be exercised in this case.
It is true that in Bonnell v. Van Cise, 8 S. D. 592, 67 N. W. 685, this court held that where the notice of appeal was served on the adverse party and on the clerk, and was duly filed, but no undertaking executed or deposit made, or waiver thereof, and the record not transmitted to this court, and failure to file and serve any abstract or brief, the appeal was a nullity. But that was a peculiar case. The appellant had served and filed a notice of appeal, but had failed to file or serve any undertaking, or take any other proceeding in the case. The respondent moved to dismiss the appeal upon the ground that the appeal had not been perfected, no record filed in this court, and no abstract or brief filed or served. The counsel for appellant resisted the motion to dismiss the appeal upon the ground that this court had'no jurisdiction to make any order in the premises. In view, therefore, of the facts in that case, this court held that the case was not in this court, and there was no necessity for an order dismissing the appeal. It will be noticed in that case there was a total failure on the part of the appellant to perform any act, except serving the notice of appeal, to bring the case into this court, and make no motion to this court for any relief, but insisted that the case was not in this court. Had the record been filed in this court by the appellant, and a motion made prior to the motion to dismiss the appeal for leave to perfect his appeal, a different question would have been presented. This decision, it will be noticed, was made prior to 1903, when section 5235, Comp. Laws, was amended.
*611In the majority opinion, attention is called to-a number of decisions of this court dismissing appeals from justice’s court to the circuit court, in cases where no undertaking was filed or deposit made, and the court seems to assume that the amendment made by section 103 of the present Revised Justice’s Code has made no material change in the law in section 6133 of the Compiled Laws by the amendment, but in my judgment that amendment has materially changed the law as it stod prior to 1903. Prior to that time, no power was vested in the circuit court to relieve an appelant from a failure to fully comply with the provisions of the law relating to the execution and filing of the required undertaking. Since the amendment, however, the circuit court is vested with substantially -the power conferred upon the Supreme Court by section 461 of the Code of Civil Proceedure, and while the amendment to section 103 of the Justice’s Code is not quite as full and comprehensive as the amendment to section 5235, Compiled Laws, by section 461 of the Revised Code of Civil Procedure, it was evidently intended to accomplish a similar result, and practically confers upon the circuit court jurisdiction of the appeal from the justice’s court, and permits the circuit court to allow any act to be done which may be necessary to perfect the appeal.
It will be observed by an examination that the cases cited in the opinion of the court in which appeals from the justice’s court were dismissed, on the ground that no undertaking had been filed as prescribed by the provisions of the Code as they then existed, were all decided prior to the amendment referred to in 1903.
Without attempting to set out in detail the reasons for the failure of the appellants to serve and file the undertaking on appeal at the time of the service and filing of the notice of appeal in the case at bar, they are such, in my judgment, as to require of this court the exercise of its power in behalf of the appellants in furtherance of justice. It must suffice to say that the notice of appeal was served on the- 26th day of December, 1910, and that on the 31st day of December, 1910, an undertaking was forwarded for filing, and was filed in the office of the clerk of court in and for Brown county, but a copy was not served on respondent’s coun*612sel; that said undertaking was served upon the attorneys for respondent the ist day of, February, 1911, and that the respondent refused to accept service and returned the same to the appellants; and it clearly appears that the delay in filing and serving said undertaking on appeal was due to inadvertence, or more properly, perhaps, accident.
The notice of appellants’ motion for leave to serve a copy of the appeal bond as of the date of the serving of the notice of appeal, and file same as of that date, was given prior to the notice of the respondent’s motion for the dismissal of the appeal. The motion of the appellants should, therefore, have been first con'sidered by this court, and the motion upon the showing should have been granted.
The duty of this and all other courts of this state to relieve parties from mistakes, accid.ent, surprise, inadvertence, or excusable neglect is inculcated throughout the provisions of our Code of Civil Proceedure. Section 150 of the practice act, as -to the amendment of pleadings, is exceedingly liberal, and enables courts to relieve parties from inadvertence or mistakes in a very large class of cases, and by section 306 time may be extended and a new time fixed after the time limited therefor has expired within which any of the acts- specified may be done; and section 461 of itself, in effect, requires this court to exercise the power vested in it liberally, in furtherance of justice, in order that cases appealed may be heard in this court and decided upon their merits, where the court is satisfied that the parties are acting in good faith, and that their failure to comply with the statutes or rules of the court has not been intentional, or omitted with a view of delaying the hearing of their cases.
It appears from the affidavit of the appellants’ counsel that they and respondent entered into a stipulation that the cause should be submitted at the present term of this court, and that they had already prepared their abstract and were about preparing their brief at the time this motion to dismiss was made. Considering the fact; therefore, that- the appeal was taken in December, 1910, certainly no charge of an intention on the part of the appellants’ *613counsel of delaying the hearing in this action can be imputed to them. I ’am clearly of the opinion, therefore, that this court, in furtherance of justice, should relieve the appellants and grant their motion upon such terms as the court may deem just in the premises, which should be sufficient to reimburse the respondent’s counsel for their expenses in preparing and making the motion to dismiss the appeal, and in resisting appellants’ motion. This court has always been in favor of giving a liberal construction to.the powers of this and the lower courts in relieving parties from mistake, inadvertence, surprise, or excusable neglect, where it clearly appears that there has been no intentional omissions to perform the acts required by the statute, and in my judgment it is only in extreme cases, where it is manifest that the acts omitted were for the purpose of delay or annoyance to the opposite party, that this court should refuse to relieve them.
I am, therefore, of the opinion that appellants’ motion should be granted, and the motion of the respondent to dismiss the appeal should be denied.
HANEY, J., concures in the dissenting opinion.