Fairburn v. Goldsmith

• Decision Date: 15 June 1881
• Citation: 9 N.W. 300,56 Iowa 347
• Parties: FAIRBURN v. GOLDSMITH AND OTHERS.
• Court: Iowa Supreme Court

56 Iowa 347

9 N.W. 300

FAIRBURN

v.GOLDSMITH AND OTHERS.

Supreme Court of Iowa.

Filed June 15, 1881.

Appeal from Sac circuit court.

BY THE COURT.

A motion has been made to dismiss this appeal because no transcript has been filed and the appeal was not taken and perfected within six months after the rendition of the judgment. Appeals must be taken within six months after the rendition of the judgment or order appealed from. Code, § 3173. An appeal is taken by the service of a notice in writing on the adverse party, his agent or attorney. Code, § 3178. The notice in this case was served, as above provided, within six months after the rendition of the judgment. But it is said that this is not sufficient, and that the appeal must be perfected within six months after the judgment. It is further said that this cannot be regarded as having been done until the “clerk has been paid or secured his fees for a transcript.” Code, § 3179; Loomis v. McKenzie, 8 N. W. REP. 179. It seems to us a distinction is recognized by the statute between an appeal and a perfected appeal. The appeal must be taken in the time by the services of the notice required by the statute, and there is no provision fixing a time when it must be perfected by paying or securing the fees of the clerk for a transcript. When the fees of the clerk are so paid or secured, the clerk must forthwith forward the transcript to the clerk of this court. Code, § 3179.

If appellant fails to file a transcript, and have the case docketed, so that it may be heard in this court at the time appellee is entitled to have the same tried, and appellant fails to show a sufficient excuse for his failure, the appellee may have the appeal dismissed or the judgment affirmed. Code, § 3181. But no appeal shall be dismissed or the judgment affirmed because the cause has not been docketed or transcript filed in the supreme court, if it be made to appear that the appeal was taken in good faith and not for delay, or if, from the conduct of appellee or his counsel, appellant was induced to believe no motion to dismiss or affirm would be made. Miller's Code, 783. It has been uniformly held, under the foregoing statute, that preparation of an abstract, filing the same in this court, and having the cause docketed, was evidence of good faith, and that when this was done we would not dismiss the appeal or affirm the judgment. At the same time, if a transcript had not been waived one must be furnished if the...