Hayes v. Kelley

Mr. Chief Justice Beard delivered the opinion of the Court. This case involves a contest instituted by the defendant in error in the county court of Rhea county against the plaintiff in error over the office of the clerk of the county court of that county. On the ninth day of July, 1903, that court formally adjudged the defendant in error to have been duly elected to that office at the election held in August, 1902, and that he was entitled to recover from the contestee all the costs incident to the litigation. From this judgment the contestee prayed and was granted an appeal to the next term of the circuit court to be held for that county. That term began, under the law, and as a matter of fact, on the eleventh day of August succeeding. On that day one of the attorneys of the contestee, the plaintiff in error, appeared in open court and presented his own affidavit, in which he undertook to explain the failure of the contestee to present and file a transcript of the record in the case, and also a certified copy of the judgment rendered by the county court, and upon these papers moved the court to set the [297] cause on tlie jury docket for trial at that term. This motion was met by a counter motion upon tbe part of the contestant, the defendant in error, to affirm' the judgment, upon the ground that the plaintiff in error had failed to file a transcript of the record as required by the statute. The first of these motions was denied by the circuit judge, the second was entertained by him, and thereupon a judgment of affirmance of the action of the county court was entered, and the case was remanded to that court for the purpose of carrying into full force and effect the judgment of the circuit court. The case has been brought to this court by the contestee, and errors are assigned upon the action of the circuit .judge. . There was no error committed in the court below. By section 4879 of Shannon’s Code it is provided that “any persons dissatisfied with the sentence, judgment, or decree of the county court may pray an appeal to the circuit court of the county unless it is otherwise expressly provided by this Code.” It is under this section that persons dissatisfied with the judgment of the county court in election contests have their remedy. Dodd v. Weaver, 34 Tenn., 670. This appeal must be to the next term of the circuit court, if more than five days intervene between the date of the appeal and the first day of the term. Shannon’s Code, section 4881. It is provided, by section 4882, that a “transcript of the record of the suit on which the appeal, is made shall be delivered to the clerk of the cir298 euit court by the first day of the term to which the appeal is taken”; and, by section 4883, that if “the transcript is not filed within the time prescribed in the last section, or if the appellant shall fail to appeal or to prosecute his appeal,- the judgment, sentence or decree ■of the county court shall be affirmed.” These provisions were brought forward into the Code from sections 54, 63, and 66 of the Act of 1794, chapter 1, with a single modification, in this: that whereas, by section 66 of that act, the transcript was to be delivered to the clerk of the circuit court at least fifteen days before the sitting of the term to which the appeal was taken, it is now provided by sections 4882 and 4883, referred to above, that the transcript shall be filed, under the penalty of affirmance-of the judgment of the lower court, by the first day of the term. Beginning as early as the case of Stuart v. Pasmore, 5 Hayw., 30, the provision of section 66, chapter 1, of the original act, was held to be mandatory, and that on the failure -of the plaintiff in error to file the transcript within the time limited therein it was imperative upon the circuit court to affirm the judgment appealed from. This rule was followed in Duncan v. McGee, 7 Yerg., 103, the court saying that the purpose of the act was to enable the parties to bring the case to a speedy trial, and that the judgment of the lower court must be affirmed if the record is not filed in time, even though filed before the motion for an affirmance is made. Again, in the same volume, on page 305, 27 Am. Dec., 505, in the [299] ease of McDonald v. Smith, the court, considering this section, said that the rule laid down in it is one of “positive law, and cannot he departed from. Cases of great hardship have occurred in the practice under it; hut in no form, except where fraud has been practiced to prevent the carrying up the record, has the court felt authorized to help the delinquent. In all such cases it must be taken that the appellant had abandoned the prosecution of the appeal. The court can give no other judgment.” In Gregory v. Burnett, 1 Humph., 60, it was held that the failure on the part of the appellant in that casé to comply with the mandate of the statute precluded a rehearing of the facts of the case and settled the rights of the respective parties, and that the judgment should be affirmed even though it might appear that the judgment of the county court, upon the facts, was erroneous. The statute was again recognized and applied to an appeal from the county to the circuit court in the case of Turnpike Co. v. Quinby, 8 Humph., 481. So far as we can discover, there was no departure from the line laid down in these early cases up to the adoption of the Code in 1858. And it must be assumed that when this section was brought forward it was the legislative intent that the Code provision should have the same construction as was given by these authorities to the early act. For a long period of years, by courts and text-writers, it has been recognized as a sound rule that “a settled judicial construction put upon a statute [300] has almost the same authority as the statute itself although the courts have the power to overrule their decisions and change the construction, they will not do so except for a most urgent reason.” Black on Interpretation of Law, section 142; Hammond v. Anderson, 4 Bos. & P., 69; King v. Younger, 5 Durn. & E., 449; King v. Inhabitants of Eccleston, 2 East, 299; People v. Albertson, 55 N. Y., 50;, Beck v. Brady, 7 La. Ann., 1; Seale v. Mitchell, 5 Cal., 401. No sound reason has been assigned why there should be a departure from a construction so long adhered to; rather, in fact, the same reason exists for a rigid enforcement of this statute as was given by the court in Duncan v. McGee, supra, and that is, to bring the cause to a speedy trial. If the statute was not held to be mandatory, it would be possible for an unscrupulous appellant to withhold the transcript to a day in the term when, on account of the pressure of other and preceding- causes, a postponement of a trial to another term would be inevitable. The next question is, was the statute satisfied by the filing of the affidavit and the certified copy of the judgment of the county court on the .first day of the term? The statute itself answers this question.. It is “the transcript of the record of the shit on which the appeal is made” which is to be delivered to the clerk on that day — that is, a transcript of the whole record-upon which the lower court acted in delivering its judgment. It is insisted, however, that, conceding, all this to he [301] true, yet tbe circuit court was without power to affirm tbe judgment of tbe present case, because of tbe fact that no transcript of tbe record bad been filed ' at tbe time tbis fiction was takeb by that court. It is true that no full transcript bad been filed, but tbe circuit judge bad before bim a transcript of tbe pleadings filed in tbe county court showing tbe subject of tbe controversy; and that that court bad jurisdiction of tbe cause and tbe parties, together with' a certified copy of tbe judgment in tbe cause. Tbis was sufficient for tbe purpose -of tbis motion. Tbe plaintiff in error being at fault in failing to file' tbe transcript, tbe defendant in error should not be put to tbe delay and expense of procuring a full copy of tbe record in order to get tbe benefit of bis motion. For bis purpose a complete record was not necessary, as tbe case could not be tried at that time upon its merits. Gregory v. Burnett, supra. This had been precluded by tbe failure of the plaintiff in error to comply with the statute. All that it was necessary for tbe plaintiff in error to do was to show that tbe county court bad jurisdiction of tbe subject-matter and bad rendered tbe final judgment in tbe case, and tbis was sufficiently done by tbe partial, record which was presented. The result is that the judgment of the circuit court is affirmed, and this cause is remanded to the county court, requiring that court to oust plaintiff in error from the office of county court clerk and properly induct the defendant in error into the same.