Peran v. Monroe

Opinion by Lewis, C. J., full Bench concurring. It appears from the record in this case that the judgment of the Court below was rendered on the 12th day of July, A. D. 1864; that notice of appeal was filed and served on respondent’s counsel on the 11th day of July, A. D. 1865; but it seems the undertaking was not filed until the 15th of July, which was more than one year from the day the decree was rendered. Upon these facts it is claimed, on behalf of the respondent, that the appeal was not taken within the time limited by statute, and should therefore be dismissed. If no appeal is taken until an undertaking is filed, unquestionably the respondent is correct in the position he has taken upon this motion. The Practice Act will, however, admit of a different, and what appears to us to be a more correct construction. Section 275, Laws of 1861, expressly declares that the appeal shall be made by filing with the Clerk of the Court with whom the judgment or order appealed from is entered, a notice stating the appeal from the same; not the filing of a notice and undertaking, as claimed by respondent. Section 286, page 363, it is true, declares that “ to render an appeal effectual for any purpose in any case, a written undertaking shall be executed on the part of the appellant by at least two [487] sureties.” An appeal may, however, be taken, though not completed or effectual for any purpose until the undertaking is filed. The appeal is taken by filing- and serving the notice, and the appeal so taken becomes effectual or complete only by the filing of an undertaking within five days after such notice. The failure to file such undertaking within five days renders the filing of the notice nugatory, but if filed within that time the last act relates back to the first, and the appeal becomes complete. Should we hold that an appeal is not taken until the undertaking is filed, it would be in direct conflict with section 275, above referred to, which declares that the appeal shall be made by filing and serving the notice. These sections must be construed together so as to give full effect to the language of both, if it be possible, and that can only be done by holding that the appeal is taken by filing and serving the notice. Upon the merits of this appeal nothing need be said, as the question involved has already been passed upon by this Court. (Burling v. Goodman, April Term, A. D. 1865. Judgment reversed and cause remanded for further proceedings.