Lacy v. Rymer

BUBNETT, J.

The appellee, Bymer, now moves to dismiss the appeal because of the long delay of the appellants in filing the transcript in this Court.

The Cliancellor entered a final decree herein on January 19,1942. Thirty days was allowed from this date for the appellants to perfect an appeal. A pauper’s oath for the appeal was filed on February 17,1942. Apparently thereafter the Clerk and Master demurred to having to make up the record on a pauper’s oath. Then it was that one of the attorneys for appellants agreed ‘‘that he would have his own secretary make up the record” for the Clerk and Master. The transcript was not made and submitted to the Clerk and Master until April 27,1944. It was filed with the Clerk of this Court on July 6, 1944. The only excuse offered for this long delay is that the secretary of Mr. Wrinkle who was to make up this transcript had left his employment and entered war work.

We do not think this a sufficient excuse for a delay of over two years in the preparation of the transcript. Obviously the delay is due to the fault of the appellants. It is not chargeable to the Clerk and Master nor to the appellee. The transcript in its entirety is only 58 pages. In a city the size of Chattanooga certainly stenographic assistance in preparing such a small record could have been more speedily secured. For this reason the motion to dismiss must be sustained.

It is made the duty of the clerk of each of the several courts of this state, by sec. 10060 of the Code, when the cause is taken up by appeal, in the nature of a writ of error, to this court, to make out a transcript of the record and transmit it to the clerk of this court, “within forty days after the entry of appeal.” Rule 6 of this court carries a similar provision. This rule and others of this court are carried in the appendices to the Code. This rule is a salutary one. It, as well as the Code provision referred to, was enacted for a purpose that is too obvious for comment.

In the instant case the Clerk and Master cannot he, nor (X is not, charged with a violation of this statute or rule. The neglect to file this transcript is placed directly in the door of the appellants. It is the duty and desire of this court to determine all matters before it as speedily as possible. Code sections 10651 and 10652 provide for a speedy hearing in the Supreme Court.

“These two sections appear in chapter 3 of title 11 of the Code of 1932, which chapter relates to and deals with the jurisdiction and practice of the Supreme Court. But we are of opinion that these Code provisions touching appeals should he held to apply to ordinary appeals to this Court. The endeavor of the Supreme Court has been to ascribe to and vest in the Court of Appeals the right to follow the rules respecting appeals to the Supreme Court. ’ ’ Savely v. Phillips, 25 Tenn. App. 654, 166 S. W. (2d) 780, 783.

“The appeal in error in this cause, operated as an immediate transfer of the cause, upon the rise of the Court, to this Court, and put an end to all further control of the inferior Court over it.” Freeman v. Henderson, 45 Tenn. 647, 5 Cold., 647. This being true the' appellee could' only avail himself Of this delay by appearing in this court and moving to dismiss. He could have had a transcript made up himself for this purpose. It would be necessary for us to have something filed here upon which to act. Under the facts here presented it was impossible for the appellee to do this as the record was out of the Clerk and Master’s hands and in the hands of appellants’ counsel. For this reason we think the motion to dismiss comes in time.

“An appeal absolutely devitalizes a decree as.an adjudication, and confers full jurisdiction on the appellate court to deal with the cause as though no decree had ever been pronounced. Nevertheless, the inanimate decree is in the record, and may he, by order of the appellate court, or the consent of both parties, or the act or neglect of the appellant, be revitalized, in whole or in part.” (Italics ours.) Gibson’s Suits in Chancery, sec. 1262, page 1053.

The appeal is dismissed at the costs of the appellants.