Stockbridge v. Martin

On Motion to Dismiss. THOMPSON, J. This is a suit to annul two tax sales made by the village of South Highland through its treasurer and tax collector. The property is situated in the village, and the taxes were levied under an assessment made by the village authorities in the name of Justin P. O’Neal, for the years 1918 and 1919. The first sale for the taxes of 1918 was made on September 9, 1919, and the deed was recorded October 6, 1919. At this sale the property was adjudicated to the village in default of any other bidders. The second sale was made to the defendant Martin on July 30, 1920, for the taxes assessed against the owner, O’Neal, for the year 1919. This sale was recorded September 18, 1920. On the day of his purchase at the tax sale, Martin redeemed the property from the tax adjudicatión to the village. On a trial of the case, judgment was rendered rejecting the plaintiff’s demand, but on appeal that judgment was reversed by the Court of Appeal and the tax sales were annulled. When the case was called for the first time in the Court of Appeal, a motion was filed by the appellee to dismiss the appeal for the reason that the record was not filed in the Court of Appeal until long after the return day as fixed in the order of appeal. The motion was overruled, and that ruling is made one of the assignments of error in defendant’s _ application for review. The judgment of the district court was signed on July 28, 1923. The order of appeal was signed August 23, 1923, the appeal bond was filed two days later, and the record was indorsed by the clerk of the Court of Appeal on September 8, 1925, filed as of August 25, 1923. The appeal was returnable on the fourth Monday of September, 1923. It appears from statements in brief of counsel on both sides that the clerk of the district court (whose deputy at that time served as clerk of the Court of Appeal) kept a book on which was entered the cases on appeal as soon as the bond had been filed, but the records were not actually filed in the Court of Appeal until the calendar for the session of court at which the ease was to be tried was made up. That was the course pursued in this case and accounts for the long delay in filing the record in the Court of Appeal. If the date of the actual indorsement on the record (September 8, 1925) is to be accepted as the date of filing the record in the [605] Court of Appeal, instead of August 25, 1928, when the ease was entered by the clerk in the book kept by him showing cases appealed to the Court of Appeal, and if the failure of the clerk to file"the record in proper time is to be imputed to the appellant, then it is very clear that the record was filed too late and the appeal would be regarded as having been abandoned. It has been the uniform ruling of this court, in cases appealed to this court, to dismiss the appeal when the transcript has not been filed within the delay provided, and no extension has been applied for nor granted by this court. Article 7, § 27, Constitution of 1921, provides that the rules of practice regulating appeals and proceedings in the Supreme Court shall apply to appeals and proceedings in the Courts of Appeal so far as they may be applicable, and it further provided that all cases on appeal to the Courts of Appeal shall be tried on the original records, pleadings, and evidence. The Court of Appeal of the Second circuit adopted a rule providing the method of preparing the records by the clerks of the district court and directed that .such original records, as made up, should be sent to the Court of Appeal, by the clerk of the district court, in time to be filed in that, court on or before the return day. Under the above rule and the provision requiring cases to be tried on the original record as made up in the trial court, it is manifest that the rule which prevails in the Supreme Court with regard to the abandonment of appeal by failure of the appellant to file the transcript in time is not applicable and should not be enforced against an appellant in an appeal to the Court of Appeal, where the clerk of the court fails to transmit the record to the Court of Appeal on or before the return day. In appeals to the Supreme Court, the appellant has control over the transcript. The transcript is made up at his request and is paid for by him, and it is his duty to see that such transcript is filed in this court within the legal delay. If he fails to do so, the presumption is conclusive against him that he has abandoned his appeal. This cannot be true with respect to appeals to the Court of Appeal. The appellant has no control over the record. That record is a part of the archives of the court and is under the control of the clerk until delivered to the clerk of the Court of Appeal. The duty of filing the record with the Court of Appeal is imposed upon the clerk of the district court and not upon the appellant, and the failure of the clerk to perform that duty cannot be imputed to the appellant. The appellant in this ease did everything that was expected or required of him in the perfection of his appeal. He could not know in advance that the clerk would not transmit the record before the expiration of the return day, and hence was without a legal remedy to force the clerk to perform the duty required of him in transmitting the record to the appellate court. To apply the rule of this court to the Courts of Appeal would be to penalize an appellant by the loss of his appeal for the omission and neglect of the clerk of court, for which the appellant was not responsible and over which he had no control. The motion to dismiss was properly overruled.