Leech v. West

Justice Heydenfeldt delivered the opinion of the Court. In this case, a preliminary question is raised by the respondent, the decision of which renders it unnecessary to examine the record any further. Under the statute regulating appeals, twenty days are allowed the appellant to frame his statement of facts, &e.; and the Court below may allow further time upon good cause being shewn. The statute also declares, that if the party shall fail to make out his statement within the twenty days allowed, he shall be deemed to have waived his right. The appellant allowed the twenty days to expire without taking any step as the law required, or obtaining further time; and afterwards, without notice to the respondent, obtained an order of the Court below granting further time to make out a statement of the case, which he did, and obtained the certificate of the judge. The statement so made now accompanies the record. We are constrained to decide that this practice is in violation of the statute. A right which the law declares in positive terms to be waived, cannot be restored by the action of any judicial tribunal. If such a construction of the act was admitted, the discretion of the Court below would be unlimited as to time, and parties recovering judgments would not have the assurance to which they are entitled of being free from litigation. We regard [99] the act as a statute of repose, and feel bound to give it full effect. The statement, therefore, in the transcript of this cause has no legitimate existence, as a part of the record; and there being no error elsewhere, the judgment is affirmed.