Horton v. Peacock

By the Court, Fisher, O. J.

(Kingman, Justice, dissenting.) 1. The appellant having availed himself of his remedy by appeal, and having neglected to perfect his appeal by-filing his undertaking, as required by the statute, it is too late for him to fall back, and avail himself of the advantages of his petition in error. It is true that the appellant was deprived of his opportunity to review the proceedings in the court below, but that was owing altogether to his own want of diligence. It was optional with the defendant to seek his remedy either by an appeal or by petition in error. He chose the former remedy, which he failed to perfect, and having so failed, it is too late now to abandon the appeal, and seek his remedy by a petition in error. The judg *60 ment was entered in the district court in April, 1871. The statute allows thirty days in which to perfect his appeal, by filing an undertaking as provided for, and if in that time he discovered that he could not enter the undertaking he might have prepared and presented his petition in error, and in this may have placed himself in such a position as that he could secure his proper standing in court; but we cannot conceive of the right to pursue one remedy until he failed in it, and then resort to another. This was the doctrine of the supreme court of Iowa in the case of Davis v. Alexander, 1 G. Green, 86. The court in that ease held that “the case having been once determined in the supreme court it cannot be brought up again by writ of error.” By a further examination of the case, we find:

2. That the former writ of error was dismissed for want of the notice required by the law; that the writ of error had been sued out. The court, for the reason that the notice had not been given dismissed the case, and awarded a procedendo to the court below to carry their judgment into effect; this, too, without going into an examination of the errors complained of in the petition in error, so that, although the case in the supreme court of Iowa differs from this case in the fact that there had been a former writ of error sued out, while in this case an appeal was the remedy sought, yet in neither case did the reviewing court examine the case on its .merits.

In the case of Brooks v. The Town of Jacksonville, 1 Scam. 568 , the court say: “Where the appeal is dismissed the court will not permit the transcript of the record to be withdrawn for the purpose of bringing a writ of error.” Again, the courts have held that the dismissal of an appeal by the supreme courts amounts to an affirmance of ■ the judgment of the court below. This was held by the supreme court of Illinois in the case of McConnell v. Swails; also in Sutherland v. Phelps, where the court held ( 2 Scam. 571 ), that “the dismissal of an appeal a certiorari is equivalent to a regular technical affirmance of the judgment of the court *61 below, so as to entitle a party to claim a forfeiture of the bond, and have liis action therefor.”

In the case at bar there was no bond, consequently there could not be judgment taken against the sureties on their undertaking, but we apprehend that the principle will apply to the appellant in the case, and permit the appellee to have his execution. This same principle is recognized as the settled policy of the law in Hilliard on New Trials, p. 596, 597, 614, 615, the author citing: McManus v. Humes, 6 Iowa 159 ; Brill v. Meek, 20 Miss. 358 ; Hobson v. Doe, 4 Blackf. 487 .

We, therefore, are clearly of the opinion that the defendant in this case, having attempted to avail himself of the benefit of an appeal, and having neglected to enter into the undertaking, as required by the statute, and having had his appeal stricken off by this court, the judgment in the court below became absolute even without the procedendo; that it is too late now for him to apply to us by petition in error.

The motion is granted and the case dismissed.