Craver v. Gillespie

On Motion to Dismiss Appeal. SOMMERVILLE, J. Plaintiff-and appellee moves to dismiss the appeal herein for the reasons: “1. That there is no certificate or affidavit attached to the motion for appeal. “2. Judgment in the trial court had become final before any appeal-was made. “3. There was no order for appeal herein, the.original order having been vacated by judgment of the trial court. “4. There was nb appeal bond filed in the trial court.” [1] 1. The motion for appeal herein was in writing, made in open court, and it was granted, without bond. This was all done in accordance with article 573, C. P., and the Workmen’s Compensation Act, and appellee has failed to point to any law requiring that the motion of appeal should be accompanied by certificate or affidavit. [2] 2. We fail to understand what is meant in the second ground for dismissal, to the effect that the judgment in the trial court had become final in the trial court before any appeal was taken. The judgment was rendered February 14, 1917, and the motion for appeal was made March 6, 1917. It is noticed that' plaintiff filed a motion to vacate the order of appeal, and defendant, appellant, excepted to the jurisdiction of the trial court to try or consider the motion to vacate and rescind its order of appeal, on the ground that the said cause had been lodged in the Court of Appeal. This appears from the reading of the minutes, although the minutes may be somewhat confused. The appeal had been taken to and lodged in the Court of Appeal, which court transferred the case to this court, as the amount involved exceeded the. limit of the jurisdiction of that court. [3] 3. This ground for dismissal is: “There was no order for appeal herein, the original order having been vacated by judgment of the trial court.” This point was disposed of under paragraph 2, which says that the minutes of the court show that the order of appeal had not been vacated, but that the exception to the jurisdiction of the court to try the motion to vacate had been sustained. [4] 4. Appellee says: [185] “There was no appeal bond filed in the trial court.” This is true. But reference to section 19, Act 20 of 1914, p. 57, which is the Employers’ Liability Act, provides that: “Such appeal may be prosecuted by either employer or employé without the necessity of furnishing an appeal bond, and shall suspend the operation of the judgment appealed from.” The motion to dismiss is denied.