Wood v. Fort , 42 Ala. 641 ( 1868 )

A. J. WALKER, C. J.

On the 18th February, 1867, an act was approved, which declared that “no undecided appeal to the supreme court heretofore or thereafter taken, should be deemed or treated as discontinued, or as having ' otherwise lost its force, unless the appellant should duly move for a discontinuance, after the legal cause for a discontinuance had occurred.” In the case of Carlton & Slade v. Betts, in manuscript, we held that statute to be unconstitutional in its application to appeals taken before its adoption. We have now a motion for an affirmance on certificate of a judgment from which the appeal was taken on the day of the approval of that act. Without the aid of that act the appeal has lost its vitality. Therefore, the right of the appellee to an affirmance depends upon the question whether the act is to be deemed to have been of force during the entire day of its approval. Upon authority and principles of policy and convenience, carefully limiting ourselves by the necessities of this case, we decide that a public statute, remedial in its character, and not prescribing punishments or penalties, is of force during the entire day of its approval, and that the law in reference thereto does not recognize any fraction of a day. Yet we concede that the decisions are not entirely harmonious. — In re Wilman, 20 Ver. 653; Arnold v. The United States, 9 Cranch, 104, 119; 1 Kent, 455; Joseph Richardson, 6 Law Reporter, 392; David Hawes, ib. 297 ; Sedgwick on S. & C. Law, 78, 84; Eliza v. State, 39 Ala. 693 ; Motile & Ohio R. R. Co. v. State, 39 Ala. 573.

The affirmance of the judgment of the court below is granted.