McCarty v. Wintler

The Court.

The appellant’s counsel contend that rule 9 requires notice to be served upon the opposite party, to affirm a judgment in cases where the appeal has been abandoned; and that it is within the discretion of this court to permit a transcript to be filed after the second day of the term at which it is required to be filed. They insist therefore that the mandate shall be recalled, the transcript filed, and the case set for hearing. They claim that the neglect to file the transcript within the time required by the code was excusable, and have filed affidavits to show that it occurred through inadvertence; that they had taken, the appeal in good faith, had prepared their brief, and were intending to appear and argue the case whenever it should be set for hearing.

We are satisfied that rule 9 does' require that notice should be given in such cases as contended for by appellant’s counsel, and that if the facts set forth in the affidavits had been before the court when the motion for the affirmance of the judgment was made, we should not have granted the ten per cent damages; but we could not have allowed the transcript to be filed without overruling a number of decisions heretofore made by this court.

Upon an appeal to this court being perfected, the appellant must, by the second day of the next regular term of the court thereafter, file with the clerk thereof the transcript of the cause, and thereafter the court has jurisdiction of it, and not otherwise.

This is substantially the language of the code, and is a condition to the right to have the appeal heard. Nor has the appellant a right to take a second appeal from the judgment of a circuit court where one has already been taken and perfected, though the rule is different where an attempt is made to take an appeal, but in consequence of some irregularity the appeal is not perfected.

We think, however, that the appellant, in viewr of the *393 facts referred to, should not be charged the ten per cent damages. An order will therefore be entered directing that the mandate heretofore issued herein be returned to this court, unless the respondent elect to remit, and does remit, the ten per cent damages, amounting to fifty dollars, from the judgment as affirmed by this court.