Krantz v. Noonan , 4 Teiss. 264 ( 1907 )

ESTOPINAL, J.

Plaintiffs being cast on the trial of this case in .the Court a quo, took a suspensive appeal to the Supreme Court, and upon furnishing bond and otherwise observing an appeal from that Court to this, transfered the appeal to this Court conditioned upon the making by appellants of an out jurisdiction ratione materiae, it thereupon, conformably to the provisions of the Act of the Legislature No. 56 of 1904 conferring the discretion on the Supreme Court of transfer-ing an appeal, from that Court to this, transfered the appeal to this Court conditioned upon the making by appellants of an affidavit within ten days, that the appeal was not taken for delay.

Appellants failed to make the required affidavit, but thereafter applied for and obtained a devolutive appeal to this Court.

Defendants and appellees now ask that the devolutive appeal subsequently taken to this Court be dismissed on the ground that the suspensive appeal, already perfected, aver appellees, not having been prosecuted was an abandonment of the suspen-sive appeal, and that in consequence no other appeal could be taken.

It is conceded that if the suspensive appeal taken in this case, with which the Supreme Court was vested by reason of the perfection of said appeal in that Court, had been dismissed for want of jurisdiction, the right of appellants to a devolutive appeal would not be effected. But, it is urged, the appeal was not dismissed by the Supreme Court, but under the provisions of the Act 56 of 1904, its integrity was preserved, its character of perfection was not impaired, and appellants’ failure to prosecute the appeal by conforming to a condition imposed by the Act cited'supra, was a failure to prosecute the appeal after perfecting it, and therefore an abandonment thereof This theory of the law and its effect was presented in an exceptionally able manner by counsel, and was made to appear so plausible as to 'be well-nigh convincing.

We do not, however, think the position tenable.

It is quite true, and supported by abundant authority, that if one abandons an appeal by failure to prosecute the same after the jurisdiction of the Appellate Court has attached, he cannot afterwards take another -appeal,’ but a failure to complete or perfect the suspensive appeal does not preclude one from taking a devolutive appeal within the year after judgment.

This discussion may be pitched on two propositions, in both of which our deductions are adverse to the contentions of movers herein. The questions are first: “Had the appeal to this Court been perfected?” Second: “Was not the decree of the Supreme Court, denying its jurisdiction in the matter and the transfer of the case to this Court, tantamount to a dismissal of the appeal, leaving appellant in the same position as though the Act of 1004 did not exist?” ■

Taking up the first question we find, that quoad the Supreme Court, thn appeal had been perfected, but when that Court divested itself of jurisdiction and transferred the appeal to this Court, by the transfer alone, the jurisdiction did not attach here. The making of an affidavit by appellant was as sacramental to their appeal as the giving of a bond. Jurisdiction does not vest until the bond is given. Neither did it vest in this Court in the case at bar before the affidavit was made. The failure of appellants to make the affidavit was not a failure to prosecute, but was a failure to perfect their appeal. The appeal was on its way to this Court by an extraordinary route for which exceptional conditions are imposed looking to its perfection, and a non-observance of these exceptional conditions is not a failure to prosecute and therefore an abandonment, but is a failure to perfect the appeal.

Whatever doubt there could have been as to the right of appellants to a devolutive appeal in this case must be removed by the decree of the Supreme Court, and this brings us to a discussion of the second proposition indicated in this opinion.

It is elementary and conceded, that prior to the enactment of the law of 1904 the dismissal of a suspensive appeal did not bar a devolutive appeal. It is also conseded that the said law of 1904 was enacted in the interest of appellants. Would it then be reasonable to so construe that law as to make appellant’s position worse thereunder. This was clearly not the intent of the lawmaker.

The Supreme Court after declaring that it had no jurisdiction, ratione materiae, it, in accordance with Act 52 of 1904, transferred this appeal to the Court of Appeal conditioned upon the making by the appellants of an affidavit within ten days and further ordering, that if said affidavit is not made within ten days the appeal should be and is hereby dismissed.

We find, therefore, that the Supreme Court has by its adjudication in this case under the Act of 1904; placed the appellants in the same position or attitude as though the appeal had been dismissed outright. The Act of 1904 is, in our opinion a convenience to litigants, a law commendable for many reasons, but the appellant, who fails to avail himself of its provisions does not thereby suffer loss of rights enjoyed prior to the passage of the law.

In effect the Supreme Court’s decree under the law giving them authority to transfer appeals said this to appellants: “Your appeal is wrongly lodged and the Court must dismiss it, but under the law your suspensive appeal may be preserved to you and it will be preserved to you by the Court provided you care to observe certain conditions imposed by law. Otherwise you must seek relief in a Court of proper jurisdiction in the ordinary way.” It was optional with appellants to preserve their suspensive appeal or to come to this Court on a devolu-tive appeal. Another ground urged for the dismissal of this appeal is based upon the idea that the payment of the costs by the appellants prior to taking the present appeal operated as an acquisence in the judgment and that in consequence appellants are estopped from further prosecuting their suit.

Plaintiffs and appellants had not exhausted their remedies for the relief sought by them but the judgment below dismsis-ing their suit carried with it the costs of the suit, and out of abundance of caution and to avoid execution for said costs, these were properly paid.

February 18, 1907.

Besides, the correspondence submitted indicates anything but an acquisence. Plaintiff’s plainly state that they pay the costs and leave other matters to be settled b ythe Courts.

The motion to dismiss is therefore denied.