Turner v. Hine

Beck, Ch. J. Judgments were rendered in these causes on tbe 15th day of September, 1873, and an appeal in each perfected on the 3d day of October, 1873, by the service of the notices required by law. On the 2d day of December, 1873, being the second day of the present term of court, the transcripts and abstracts required by law and the rules of this court were filed. No certificate of the clerk of the district court in which the judgments were rendered was filed here, as required by Code, section 3181, at the time the transcript should have been filed, to the effect that he has not had sufficient time to prepare the transcript. A. J. McCrary for the motion. On the third day of December (the third day of this term), the appellee filed a certified .transcript of the judgment in eagh case required by the section just named and moved thereon that the judgment be affirmed. The motion must be sustained in each case. The appeals were taken more than thirty days before the present term and should have been docketed with the abstracts and briefs required by the rules of this court fifteen days before the first day of this term. Code, § 3180; Amended Rules, 20. Section 3181 provides that if this requirement be not complied with the appellee may file a transcript of the judgment and notice served on the clerk and have the judgment affirmed unless the appellant, in order to defeat such action, files at the time the appeal should have been docketed here, a certificate of the clerk of the court rendering the judgment, stating that he has not had time to prepare the transcript. Rule 2i provides that like consequences will result from a failure to file the abstract at the time required; the judgment for that cause must also be affirmed. These provisions are not simply directory, but must be complied with to entitle a party to be heard in this court, unless waived by the agreement or act of the appellee. Let the motion in each case be sustained and a proper judgment of affirmance be entered in each case.