Oppenheim v. O. W. Richardson & Co.

Townsend, J. (after stating the facts). The appellant has filed two assignments of error, as follows: “(1) That the court erred in dismissing said appeal, for the reason that said cause did not stand for trial at the November term, and that the transcript was not due to have been filed in. said court until the first day of the spring term thereafter. (2) ■ That the appeal having been taken only two days before the term of court begun it was an abuse of discretion of the trial judge to dismiss said appeal and confirm the judgment below.” Appellant contends that under section 4147, Mansf. Dig. (Ind. Ter. Ann. St. 1899, § 2827), which says: “All appeals allowed ten days before the first day of the term of the Circuit Court next after the appeal allowed shall be determined at such term, unless continued for cause” — that this cause could not be determined at the November term, but would stand for trial at the spring term thereafter, because the appeal was not allowed ten days before the commencement of the said November term. Under section 4139, Mansf. Dig. (Ind. Ter. Ann. St. 1899, § 2819): “On or before the first day of the Circuit Court next after the appeal shall have been allowed, the justice shall file in the office of the clerk of such court, a transcript of all the entries made in his docket relating to the cause, together with all the process and all the papers relating to such suit” — it is made the duty of the justice to file a transcript on or before the first day of the next term after the appeal shall have been allowed. In Smith et al. vs Allen, 31 Ark. 268, it is said: “Where an appeal is taken from the judgment of a justice of the peace, it is his duty to.file a transcript in the office of the clerk of the Circuit Court on or [212] before the next term of that court, and it is incumbent on the appellant to see that the transcript is filed and the case docketed. If he neglects to do it, it is in the discretion of the Circuit Court to affirm the judgment of the justice.” Under section 4152, Mansf. Dig. (Ind. Ter. Ann. St. 1899, § 2832), which says: “If the party appealing moves to dismiss in the Circuit Court, or fails to prosecute his appeal, it shall be at the option of the appellee”either to proceed to trial on the appeal, or have judgment^rendered for the amount of the original judgment and costs, where it -w&s in his favor, or in bar of the original judgment, where it was against him” — this statute authorizes the appellee to have his judgment affirmed if the appellant fails to prosecute his appeal. In Hughes vs Wheat, 32 Ark. 296, the court said: “But in the absence of any showing whatever, we cannot say that the court below abused its discretion in dismissing the appeal because the transcript, etc., was' not filed within the time prescribed by the statute. To do so would be to disregard the statute.” The appellant failed to prosecute his appeal as the law requires. The appellee simply pursued the remedy given him by the statute, and in the absence of any showing by the appellant, the court coüld do nothing but affirm the judgment upon the application of appellee. This court will not reverse where the only ground stated is the appellant's own negligence.. Therefore the judgment of the court below is affirmed. Gill, J. concurs. Raymond, C. J., not participating