Bryan v. Pinney

• Decision Date: 20 March 1888
• Docket Number: Civil 242
• Parties: T. J. BRYAN, Plaintiff and Appellant, v. D. H. PINNEY, Defendant and Appellee
• Court: Arizona Supreme Court

17 P. 97

2 Ariz. 390

T. J. BRYAN, Plaintiff and Appellant, v. D. H. PINNEY, Defendant and Appellee

Civil No. 242

Supreme Court of Arizona

March 20, 1888

APPEAL from a Judgment of the District Court of the Second Judicial District in and for the County of Maricopa. W. W. Porter Judge. Motion to dismiss appeal.

Denied.

Goodrich & Street, for Appellant.

Baker &amp Campbell, for Appellee.

Barnes J. Wright, C. J., and Porter, J., concur.

OPINION

The facts are stated in the opinion.

BARNES J.

In this case appellee moves to dismiss the appeal on the ground that the transcript was not filed on the first day of the term. Section 938, Rev. St., provides that "it shall be the duty of the appellant or plaintiff in error to file a transcript of the record with the clerk of the supreme court on or before the first day of the next succeeding term, held after the appeal was perfected, or the summons for writ of error was served, and that if after 30 days before the next term it shall be filed at the next term." In this case the final judgment was rendered on the 13th day of December A. D. 1887, and notice of appeal given; and bond was filed and appeal perfected on the 16th day of January, A. D. 1888. The regular term of this court began on the second Monday of January at Prescott. At that term the judges signed an order for an adjourned term of said court at Tucson March 1st, and an order for an adjourned term in June, at Prescott. Rev. St. U.S. § 1934, provides that the supreme court of Arizona may hold adjourned terms thereof at any time and place in the territory agreed upon by a majority of the judges of the court at any regular term thereof. The order for an adjourned term shall be signed by a majority of the judges thereof at a regular term of the court, and entered upon the minutes of the court, and any business which said court might do at any regular term thereof may be done at such adjourned term. It is insisted that this is not a term of court, but is merely an adjourned session of the January term, and hence that this transcript will be due under the statute at the January term of this court, 1889. We are referred to the case of Bank v. Withers, 6 Wheat. 106. There the law provides that "said courts are hereby invested with the same power of holding adjourned sessions that is exercised in Maryland," and the court held this did not make the adjourned session a distinct session. There is a broad...