Hart v. Lequieu , 110 Ark. 284 ( 1913 )

Smith, J.,

(after stating the facts). Section 4670 of Kirby’s Digest reads as follows:

“On or before the first day of the circuit court next after the appeal shall have been allowed, the justice shall file in the office of the clerk of such court a transcript of all the entries made in his docket relating to the cause, together with all the process and all the papers relating to such suit.”

This section has been construed in several cases and it has been held that while the statute makes it the duty of the justice of the peace to file the transcript in the clerk’s office within the time prescribed, it is nevertheless incumbent on the appellant to see that this is done— that he must prosecute his appeal. Hughes v. Wheat, 32 Ark. 292.

That case holds that although the provisions of this section are directory, they can not be ignored, and other cases hold that where the transcript is not filed within the time limited by the law, the appeal should be dismissed in the absence of a satisfactory explanation of this failure. “It is the duty of the appellant to see that his appeal was perfected in time; and when no diligence on his part was shown, nor excuse for the delay, the appeal should have been dismissed, or the judgment of the justice of the peace affirmed.” Smith v. Allen, 31 Ark. 268; McGehee v. Carroll, 31 Ark. 550; Wilson v. Stark, 48 Ark. 73; Bates v. Mitchell, 96 Ark. 555.

The court did not undertake to pass upon the sufficiency of the excuse for failing to file the transcript, but dismissed the cause, as stated in the record, for the want of jurisdiction. This was error, for the court had the jurisdiction to set aside an order of dismissal made at the same term of court. McPherson v. Consolidated Casualty Co., 151 S. W. 283, 105 Ark. 324.

We do not know the court’s view of the sufficiency of the showing for the reinstatement of the appeal, when considered upon its merits, and we will not therefore undertake to pass upon that question.

The judgment will be reversed and the cause remanded with directions to the court below to pass upon the motion to reinstate the appeal upon its merits.