Brown v. Leet

Per Curiam : A motion has been made to dismiss the appeal in this case, for the reason that the transcript of the record was not filed in the time required by law. Section 72 of the Practice act requires “that transcripts or certified copies of the records of judgments or decrees appealed from, shall be filed in the Supreme or Appellate Court, as the case may be, on or before the second day of the succeeding term of said court: Provided, twenty days shall have intervened between the last day of the term at which the judgment, order or decree appealed from shall have been entered, and the sitting of the court to which the appeal shall be taken; but if ten days, and not twenty days, shall have intervened, as aforesaid, then the record shall be filed, as aforesaid, on or before the tenth day of said succeeding term, otherwise the said appeal shall be dismissed, unless further time to file the same shall have been granted by the court to which said appeal shall have been taken, upon good cause shown.” The term of the circuit court at which the decree in this ease was rendered, ended September 19, 1890. The next succeeding term of this court commenced on the first Tuesday of October, which was October 7,1890. The transcript herein was filed October 17, 1890. The only question arising on this-motion is, whether the transcript was filed on or before the tenth day of the October term of this court. If the intervening Sunday is to be counted as one of the days of the October term, then the transcript was not filed in the time, and the motion to dismiss must prevail. A term of court is the period of time fixed by law for the hearing of causes and the transaction of judicial business therein. The term as fixed by the statute is to commence upon a particular day, and after its commencement it continues, whether the court sits during the days composing it, or not. A day may, therefore, be one of the days of a term notwithstanding the court may not sit upon that particular day, and it can make no difference whether the failure of the court to sit, results from an adjournment by the court from one day over to another day in the same term, or because the intervening day is dies non. In the computation of the term all adjournments are to be included. (9 Watts, 200.) For most purposes a term of court is considered as one day, (Chiniquy v. The People, 78 Ill. 570,) but for the purposes of this section of the Practice act the term is made to consist of days, and the word “day” therein is used in its popular sense. The fact that Sunday is not a judicial day, does not, within the contemplation of this statute, render it any less a day of the term. As before said, if this court should adjourn on the first day of the term to the twentieth, the intervening days would be days of the term, and the adjournment would not dispense with the necessity of filing transcripts of the judgments and decrees appealed from, on or before the second or tenth days of the term, as it is provided shall be done. It follows that the transcript in this case was not filed in the time required by law, and the appeal is dismissed, in compliance, with the positive requirement of the statute. Appeal dismissed.