Reynolds v. McCallum

McClure, C. J. On the 23d. day of May, 1870, an appeal was granted by the circuit court of La Payette county, and, on tbe 29th of August, 1873, the transcript was filed in this court. On tbe last mentioned day a summons was issued, directed to tbe administrator of tbe estate of Lucy Hamilton, deceased, service of wbicb was accepted by appellee’s attorney, waiving exceptions to form of service, but as to nothing else. On the first day of tbe present term, tbe cause was called and submitted at tbe instance of the appellant, tbe court not noticing that tbe appeal bad been granted more than three years before tbe filing of tbe transcript. On tbe 17th of December, 1873, counsel for tbe appellee filed a motion to dismiss tbe appeal on the ground that tbe transcript bad not been filed in this court witbin the time prescribed by law. On tbe next day, counsel for appellant filed a motion to strike tbe motion to dismiss from the files, on tbe ground that the cause was submitted before the filing of tbe motion to dismiss. The code provides that either party to an action shall be granted an appeal as a matter of right, on motion made in tbe circuit court, or by tbe clerk of this court in vacation. Sec. 859. By section 862 of tbe code, it is made tbe duty of the appellant to file an authenticated copy of tbe record in the clerk’s office of tbe supreme court, witbin ninety days after the appeal is granted, and this court, for good cause shown, is authorized to extend tbe time witbin wbicb tbe transcript may be filed. No extension of time has ever been asked in this case, nor has any showing been made why tbe transcript was not sooner filed. Section 867 of tbe code dedares that an appeal shall not be granted after the expiration of three years from the date of the rendition of the judgment. In view of the fact that the transcript was not filed here within three years after the rendition of judgment, we direct that the submission heretofore had be set aside, and the cause is dismissed, and the clerk of this court is hereby directed not to docket a cause or file a transcript in his office, after the expiration of ninety days, in cases where the appeal was granted in the court below.