Glesin v. Glesin ( 1923 )

Per Curiam.

This is an action by a wife, suing by her guardian ad litem, against her husband for separate maintenance. Prom a judgment entered in the court below in favor of the wife,.the husband appealed. On the day the cause was set for hearing in this court, the wife moved to dismiss the appeal for want of jurisdiction in this court, contending that the bond necessary to perfect the appeal was filed more than five days after the notice of appeal was served, thus rendering the appeal ineffectual for any purpose under the code. Rem. Comp. Stat., § 1721 [P. .0. § 7295]. An examination of the record then made disclosed that the motion was apparently well taken. The court, however, on the representation of the appellant that the notice of appeal was actually served at ai later time than the date thereon indicated service to be made — that it was, in fact, filed and served at the time the bond given was filed and served- — did not then dismiss the appeal, but remanded the cause to the trial court to take evidence on the question and return to this court the evidence so taken, with his findings and conclusions thereon. After the remand, the trial court heard the evidence offered by the parties, finding and concluding' that the record as originally filed in this court showed the true date of the service of the notice of appeal.

"While there is a difference of opinion among the members of this court on the question whether or not the evidence justifies the court’s findings, it is the conclusion of the majority that they are well founded by the evidence returned. It would, however, serve no useful purpose to set out the evidence in detail, or enter upon a discussion of it, and the order will be that the appeal be dismissed.