¶1after stating the facts, delivered the of the Court—Murray, C. J., concurring.
¶2"W e have no doubt of the service upon the attorney being sufficient; so was the undertaking, as the plaintiff had possession of the horse, and the undertaking was ample for the costs and damages. But had the undertaking been defective, that objection should have been made in the County Court upon the appeal, when, upon a proper showing, the party might have been permitted to file a proper undertaking. (Howard v. Harmon, Jan. T., 1855.) When the appeal is taken bona fide, and not for delay, the appellate Court will always permit another undertaking to be filed. This is no injury to the respondent. In proceedings before justices of the peace, there cannot reasonably be required the same strictness as in the higher Courts.
¶3But conceding that the appeal was defective; a writ of review was not the proper remedy. There was no excess of jurisdiction by the justice; he had jurisdiction to grant an appeal in the particular case, and to make an order to stay proceedings. If he erred, it was in the exercise of jurisdiction, and not in assuming it, when it did not exist. There was a valid but appealable judgment in his Court; he decided that the notice of appeal and undertaking were sufficient, and therefore made the order. This was clearly the exercise of jurisdiction, and no more. This is a very different case from the one of Clary v. Hoagland. In that case, the judgment of the County Court had been reversed by the Supreme Court. The County Court ordered the clerk, by peremptory mandamus, to issue execution upon the judgment which had been reversed; there was no judgment upon which to issue execution, and this Court held that the County Court had exceeded its jurisdiction.
¶4We are of opinion that the writ was improperly issued. The County Judge is, therefore, ordered to dismiss the writ.