Hadfield-Penfield Steel Co. v. Oberlander

MATTHIAS, J.

1. Under the provisions of Section 10388, General Code, if the appellant fails' to deliver a transcript to the clerk of courts and have the cause there docketed on or before the thirtieth day from the rendition of the judgment appealed from, the appellee may file a transcript, have the cause docketed and procure judgment thereon at the term of court next after the expiration of such thirty days.

2. The clause, “at the term of the court next after the expiration of such thirty days,” refers to the term of court which convenes next after the term of court in session at the expiration of the thirty days, or next after the recess, if the court is in recess at the expiration of the thirty days.

3. Where the appellant failed to perfect his appeal as prescribed by Section 10388, General Code, and such thirty days expired during a term of court, there was no authority to render judgment in favor of the appellee until the following term of court, and suit against the surety on the appeal bond in such case, predicated upon a judgment entered against the appellant prior to said term, cannot be maintained.

Judgment affirmed.

Marshall, C. J., Robinson, Jones, Day and Allen, JJ., concur. Wanamaker, J., not participating.