O'Hern v. Browning

Stewart, J., delivered the opinion of the Court. Under the Act of 1864, chapter 322, a party may lose his right of appeal if, by his neglect, the record shall not be transmitted to the Court of Appeals within nine months after the appeal has been entered, and the Court, from which the appeal was taken, may strike out the entry of the appeal in such case. This loss of right to appeal, besides for other neglect, may be incurred by failure to 'pay the clerk for the preparation of the record, which the clerk is required to make out and transmit to the Court of Appeals within nine months after the appeal is entered. It is the duty of the clerk to prepare the record, for transmission to this Court, within the nine months from the entry of the appeal, and where this is done, and his legal charge for the same has been made out and not paid, and the record is not transmitted within time, on that account the right of appeal is lost by such omission of the appellant. [475] (Decided 13th January, 1871.) When the clerk’s bill for the preparation of the record is not paid, or the record not transmitted within the nine months, from any other neglect or omission on the part of the appellant, the Court below has the power to strike out the entry of the appeal, and no other appeal can be taken on the same matter. Before this law deprives the party of his right of appeal, on account of the non-payment of the clerk’s bill for making out the record, which was the ground relied upon in this case, the clerk must have the record prepared for transmission within nine months from the entry of the appeal. These provisions were intended to secure diligence on the part of the appellant, in maintaining his right of appeal, and also on the part of the clerk, and to allow him no excuse for not preparing the record for transmission in due time, because of the non-payment of his bill of fees for the same. From the evidence adduced in this case, it does not appear that the record (which means a sufficient transcript of the proceedings below, to enable the Court of Appeals to review the same,) was prepared for transmission within the nine months from the entry of the appeal, and, therefore, we do not see that the appellant can be denied her right of appeal on that account. To the extent, and under the limitations of the law, this right of appeal is not to be abridged by any narrow or technical construction. On the contrary, it is a valuable right secured to parties, where they are vigilant, and not to be forfeited, unless where they are guilty of such laches as the law will not sanction. The motion to dismiss the appeal from the order refusing to rescind the order striking out the appeal must be overruled, and the order of the Court below refusing to reinstate the appeal, must be reversed, and an order will be passed by this Court reversing said order, and rescinding the first order striking out the appeal. Motion to dismiss overruled, and order reversed.