Mackall v. Willoughby ( 1896 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

The motion to dismiss the appeal in this case must be overruled. It is founded on Rule XIV of this court, upon the supposition that, by the construction of that rule, the appellant is bound to file the transcript of the record in this court within forty days from the mere entry of the prayer for the appeal in-.the court below. But this construction of the rule cannot be maintained. The rule provides "-that it shall, be the duty of the appellant within forty days from the time of the appeal entered and perfected in the court below (unless such time for special and sufficient cause be extended by the court below, or the judge thereof by whom the judgment, &c., may have been rendered, such time to be definite and fixed), to produce and file with the clerk of this court a transcript of the record of such cause,” &c. To determine when the appeal is perfected, as contemplated by this rule, we must have reference to the fourth section of the preceding Rule X. By this last mentioned rule, an appeal bond, or the deposit of money, for costs, is required as a condition to the perfection of an appeal and the production of the transcript in this court. In this respect, the rule ma- ■ terially differs from the terms of the statute requiring an. appeal or writ of error bond to be given ori appeal or writ of error to the Supreme Court of the United States. By the fourth section of Rule X, it is provided that " if neither the bond required by the preceding second section for stay or supersedeas, nor the bond or' deposit of money for security of costs required by the preceding third section, be given or made within the twenty days,, the appeal (if the transcript of the récord has not been transmitted to this court, may be dismissed by the court below, or one of the justices thereof, upon application by the appellee ; or, if the transcript has been filed in' this court, said appeal will be dismissed here, upon motion of the appellee, provided the motion for dismissal in this court be made within the first twenty days next after the receipt of-the transcript in this court.”. The appeal, therefore, .is not perfected, within, the meaning of the' rule, so as to entitle it to be heard in this court, until the bond or deposit of money is furnished in' the court below; and- it is from the time of. the giving the bond or making the deposit in '.the court below within the twenty days as prescribed by the rule, that the period of forty days must be computed for producing and filing the transcript in this court. Here, the appeal was perfected within twenty days from the rendition of the judgment, and the transcript was produced and filed within the forty days from the time of the perfection of the appeal.

The decision cited from the reports of the Supreme Court of the United States do not apply to the question presented by this motion. The decision here must be made in accordance with the terms of our rules.

Motion overruled.