Bush v. Doy

By the Court, Ewing, C. J. •'■The term of a Court is the time prescribed for holding it, and not the time the Court sits ’transacting business. The 17th day of October, 1859, was 'fixed, by law for the commencement of a term of the District Court for the second judicial district, in Douglas county. Though the Judge was not present on that day, it was the first day of the term. (See Code, § 605'.) The transcript and appeal bond should have been filed on or' before the 18th, being the second day of the term.' There .is.a docket entry of the filing of the “transcript and appeal papers”- on the 18th; but on the transcript is an indorsement by the clerk, “ filed October 19th, 1859.” If it was filed October 19th, as appears by the indorsement, the Court did right in dismissing the appeal; but if filed October 18th, as shown by the docket entry, it erred. Both entries are made in pursuance of express statutory provisions, ajid are' equally of the record. The presumption is in fjjíüor, óf' the regularity of the order of the District _ Court,, .'áhdjtherefo^ej. the date indorsed on the transcript is to be tajlien as correct'. It is claimed that as the justice of the peace'agreed to file.j .the transcript, the appellant, who relied on his prornis’e, should not lose his right.of appeal by the neglect. \!Tliql^vf' did not require the justice to file that paper, and in doing so, he acted as agent of the appellant, and -not as an officer. If, under the provisions of the' act of February 8th, 1859, regulating appeals from justices of the peace, it was in the power of the Court to extend the time for filing the transcript, still the cause shown was not such as to compel it to do so in the exercise of a sound discretion. [90] Ordered by the Court, that the order dismissing the appeal be affirmed and judgment here against plaintiff in error for costs of execution awarded thereon.