Price v. Broward

Mabry, J.: This is a proceeding in which the appellant entered an appeal in open court from a judgment rendered against him as plaintiff below in a replevin suit against appellee as defendant. The appeal was entered before the Revised Statutes went into effect, and within thirty days of the commencement of the next succeeding term of this court, and was made returnable not to a day in said term, but to the next succeeding term. The transcript of the record was not filed in this court until more than seven months after the return day as 'fixed in the appeal, but no objection has been made on this account; and, in fact, the appellee has made no appearance in this court in any manner whatever. The appeal having been taken within thirty days of a succeeding term of this court, should have been entered to a day within said term, so as to allow proper time for service of citation, but the appeal entered here, passing over as it does in express terms the next suc-ceeding term and going to the following term, was forbidden by statute (McClellan’s Digest, p. 841, section 10), and on this account is so irregular and defective ..as to cause a dismissal of the case here. An appeal 196 entered in open court as required by the statute-is-notice t-o the appellee, but one entered in violation of the statute should not be considered as such notice. In the absence of any waiver of the defective entry of' appeal in this case it should be dismissed, and it is so-ordered.