Nash v. Noble

Appellees have filed a motion to dismiss the appeal on the ground that the appeal bond was not filed in the time prescribed by the statute.

The appellant is a nonresident of the county in which the case was tried. The cause was tried and judgment rendered on July 9, 1908. The term of the court adjourned on the 23d of July, 1908. The appeal bond was filed on the 21st day of August, 1908, more than 20 days after the adjournment of the term. Appellant is in error in supposing that being a nonresident of the county in which the case was tried he had 30 days after adjournment in which to file his appeal bond. Article 1387 of the statute is as follows:

"An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered, by the appellant's giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or affidavit in lieu thereof, as hereinafter provided, within twenty days after the expiration of the term. If the term of the court may by law continue more than eight weeks, the bond, or affidavit in lieu thereof, shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in the county, and within thirty days if he resides out of the county."

It is, we think, entirely clear that the thirty days allowed a nonresident in which to file his appeal bond applies only in cases where the term continuing longer than eight weeks, the time begins to run from the date of the judgment, and does not apply to cases like the present where the time does not begin to run until adjournment. The reason for the difference is obvious. Such has been the uniform construction of the statute by this court.

The motion is sustained and the cause is dismissed.

Dismissed.