Sample v. Manning

John Manning filed in this court a duly certified copy of a decree in a chancery case from Union County, Arkansas, wherein he is the plaintiff and Clark Sample is the defendant. He alleges that he obtained a decree against the defendant in the chancery court of Union County to enforce a vendor's lien for purchase money. The decree was entered of record on the 3rd day of July, 1924, and the defendant was granted an appeal to this court by the chancery court. An appeal bond was filed with and approved by the clerk of the chancery court, and a supersedeas bond issued thereon in conformity with the statute.

Manning filed a certified copy of the decree in this court more than seven months after the decree was rendered in the chancery court, and moved the court to dismiss the appeal. The defendant resisted the motion on the ground that it showed on its face that this court is without jurisdiction in the case, because the appeal was never perfected within the time prescribed by statute.

Our statute provides that an appeal shall not be granted except within six months next after the rendition of the decree appealed from, unless the party applying therefor is under certain disabilities, which do not affect the decree in this action. Crawford Moses' Digest, 2140.

The time within which an appeal must be taken being fixed by statute, it must be taken within the time designated. The provision which limits the time is jurisdictional in its nature. Spratlin v. Haller, 69 Ark. 289.

In order to give this court jurisdiction, it is necessary to file with it a copy of the record in the court below, because it is the source from which the court obtains its knowledge of the facts in the case and of the questions upon which it is its duty to pronounce judgment. Robinson v. Arkansas Loan Trust Co., 72 Ark. 475. Thus it will be seen that a bar is fixed by law as to appeals from decrees which are appealable. After the time fixed for an appeal has expired, the appellate court has no jurisdiction to review or to try the case de novo. No useful purpose could be served by permitting the prevailing party in the court below to file a certified copy of the judgment or decree of the court below for the purpose of dismissing the appeal which had been granted to the losing party, and which he had lost by not perfecting within the time allowed by law. The dismissal of an appeal removes the case from the appellate court and places the parties in the same conditions as they were before the appeal was taken. Ashley v. Brasil,1 Ark. 144, and Burgess v. Poole, 45 Ark. 373. So it will be seen that, if the appeal should be dismissed, the parties would be just where they were before, and no useful purpose could be served, except to tax one or other of the parties with the trouble and expense of the appeal.

Inasmuch as the prevailing party in the court below could obtain no greater rights by docketing the case here and then having the appeal dismissed than he already had, no useful purpose can be served by allowing such a course, and the better practice would have been for the clerk to have refused to allow the appeal to be filed because it was not perfected within the time allowed by law.

It is claimed, however, that this practice is contrary to that adopted in Gross v. State, 89 Ark. 482. In that case the Attorney General filed a certified copy of the judgment of conviction in a misdemeanor case, and moved this court to affirm the judgment on account of the failure of Gross to prosecute his appeal. The court denied his motion to affirm the judgment, but dismissed the appeal "with directions that the judgment of dismissal be certified down to the circuit court of Perry County, to the end that the judgment may be enforced, and that the prosecuting attorney may institute proceedings on the supersedeas bond, if so advised."

Thus it will be seen that the relief asked in that case was to affirm the judgment. This was for the manifest purpose of enabling the State to have execution issued in this court on the supersedeas bond. This relief was denied by the court and the appeal dismissed, which, when tested by the directions given, amounted to no more than to strike the case from the docket. This is far from holding that the docketing of an appeal and a motion to dismiss is the proper practice, in cases where the time for appeal has elapsed.

Here the case was docketed for the very purpose of dismissing the appeal, and, as we have already seen, the dismissal would leave the parties in exactly the same condition as they were if the appeal had not been docketed in this court. Hence it is apparent that no useful purpose can be served by adopting such a course. If such a practice was adopted, it would be useless and expensive, for the parties acquire no greater rights than they already possessed. This is made perfectly clear by the directions given in the Gross case.

To sum up: in cases where the time for appeal has expired, the party recovering judgment in the court below has the right to have execution against the losing party. If a supersedeas bond has been given, he may sue on it. He could acquire no greater rights if we should hold the better practice to be to allow him to docket the appeal in this court for the very purpose of dismissing it.

Therefore we conclude that the better practice would have been for the clerk to have refused to have docketed the appeal in this case, and, in conformity with this view, the cause will be ordered stricken from the docket of this court.