(dissenting).
I entertain the view that the bond filed by the appellants in the office of the circuit clerk prior to submission here, although very inartificially drawn, is sufficient as a bond to secure costs of appeal and hence I cannot agree that the appeal in this case must be dismissed.
In the very early case of Henry v. Gamble, Minor 6, cited in the opinion of the court, appellee’s motion to dismiss the appeal was granted on the ground that no sum was named in the penal part of the bond.. The statute then extant provided “that either party may appeal from any final judgment or decree of any circuit court,” etc., upon “entering of the bond with security approved by the court in double the amount,” etc. In upholding the motion to dismiss, the court said: “ * * * The Legislature have required that the party in whose favor the judgment has been rendered shall be secured before the judgment shall be suspended, and that bond with security in double the amount of the debt or damages, etc., shall be given by the appellant as a condition precedent to his coming into this court. The sum intended to be secured by the bond, is as much a matter of the supersedeas as sealing and delivery. We could, with as much propriety now take a new bond, as permit the penalty to be inserted.”
But an appeal to this court under our present statutes is not dependent upon the execution of a bond securing the successful party, although generally speaking the judgment is not suspended unless such a bond is executed in the amount and conditioned as required by statute. Here, the appellants could have simply filed security for costs without supersedeas. The fact that they sought to supersede and failed in their efforts in that respect, in that no sum was named in the penal or obligatory part of the bond, does not in my opinion decrease the sufficiency of the bond as one to secure the costs of the appeal, inasmuch as our holdings in Greenfield v. Powell, 220 Ala. 690, 127 So. 171, and Bedwell v. Dean, 221 Ala. 224, 128 So. 389, are to the effect that while the security for costs of appeal in a supersedeas bond is found in the defeasance part of the bond, nevertheless those provisions are obligatory. See Northern Neck Mutual Fire Association of Virginia v. Turlington, 136 Va. 44, 116 S.E. 363; Rogers v. Herbst, 25 N.M. 408, 183. P. 749.
The fact that the amount of the judgment rendered in the trial court is incorrectly stated in the bond and that one of the defendants below appears to have approved the bond rather than to have signed it as an obligor, does not render the bond insufficient as one to secure costs of appeal.
I feel that the record shows that the defendants below intended to execute a bond in strict conformity with the provisions of Section 793, Title 7, Code 1940, and that the mistakes in the bond are but mistakes of the clerk of a kind which do not destroy the efficacy of the bond as one to secure costs of appeal. I also feel that the action of the court is contrary to the intent of the legislature as manifested by the provisions now codified as Sections 805 and 806, Title 7, Code 1940.