Nessans v. Colomes

On Motion to Dismiss xVppeal. SOMMERYILLE, J. Defendant, appellee, moves to dismiss the appeal in this case on three grounds: [1, 5] 1. That appellant has failed to comply with the terms of Act No. 229, 1910, p. 388, which provide that: “The appellant may, ou taking his appeal, or within three current days thereafter, file with the clerk of court, a written list of the portions of the record to constitute the transcript of appeal.” The written list of the portions of the record to constitute the transcript of appeal in this case was not filed within three days after obtaining the order of appeal as suggested by appellee, but it was filed by appellant within three days after the filing of the appeal bond. This was a compliance with the law. .To “take an appeal” is to procure, or to obtain, an appeal; and it is settled that an appeal has not been taken, procured, or obtained until an appeal bond has been filed, in cases where bonds are required. It has been frequently held that a ease has not been appealed, conveyed, carried, or transferred to the appellate court until the appeal bond has been filed; at which time the [1053] trial court ceases to have jurisdiction of the case. Words and Phrases, p. 6850. [2] 2. The next ground for dismissal is that the transcript is incomplete, in that appellant has failed to move in this court that she be permitted to use a previous transcript filed here between the same parties, in conjunction with the transcript now filed by her, -on or before the return day for filing the later transcript here. . This is without merit. The rule of court requires that: “Parties in interest inosecuting subsequent appeals will be permitted, upon application to this court, to use transcripts in previous appeals when such appeals are branches of the same case, omitting from their copy the portions included in preceding transcripts.” And it is not required that the motion to use the transcript previously filed should be made on or before the return day of the later transcript'. A motion was made by counsel for appellant, on the first day of the term, to use said transcript. [3] 3. The last ground urged for the dismissal of the appeal is that appellant has failed to comply with rule 1, paragraph 6 (47 South, v), of the court, which provides for an alphabetical index of the transcript. The documents referred, to as not being contained in the index were, by agreement, brought up in the original; and appellant, under the act above referred to of 1910, p. 388, gave to the clerk of the district court a written list of the portions of the record to constitute the transcript of appeal, omitting the original documents before referred to. The transcript having been prepared as directed, and the statute, No. 229, further providing that when so prepared the appeal shall not be dismissed on the ground of the transcript being defective, etc., the appeal will not be dismissed. Appellee had the right, within five days, under the statute, to designate such portions of the record as she might deem necessary to complete the transcript. Other parlies, or the court, may cause to be filed hereafter any omitted portion of the record in a supplemental transcript. The motion to dismiss the appeal is denied.