Spratlin v. Haller

• Decision Date: 27 April 1901
• Citation: 62 S.W. 904
• Parties: SPRATLIN v. HALLER.
• Court: Arkansas Supreme Court

62 S.W. 904

SPRATLIN v. HALLER.

Supreme Court of Arkansas.

April 27, 1901.

Appeal from circuit court, Arkansas county; James S. Thomas, Judge.

Action between one Spratlin and one Haller. From a judgment in favor of the latter, the former appeals. On motion to dismiss appeal. Motion granted.

Parker & Parker, for appellant. James H. Gibson and John F. Park, for appellee.

HUGHES, J.

The judgment in this case was rendered on the 14th of April, 1896. On that day appellant filed a motion for a new trial, which was by the court overruled, to which he excepted and prayed an appeal to the supreme court, which was granted by the court, and he was allowed 60 days in which to prepare and file his bill of exceptions. The transcript was filed in this court January 25, 1900, more than 3 years and 9 months after the judgment was rendered.

Section 1022. Sand. & H. Dig., reads as follows: "It shall be the duty of the appellant to file in the clerk's office of the supreme court, within ninety days after the appeal or writ of error is granted, an authenticated copy of the record, otherwise his appeal or writ of error shall be dismissed; but the supreme court may for cause shown extend the time for filing such copy." It is not shown that the time for filing the transcript was extended by this court But section 1018, Sand. & H. Dig., provides: "The appeal shall be granted as a matter of right, either by the court rendering the judgment or order, on motion made during the term at which it is rendered, or by the clerk of the supreme court in term time or in vacation on application of either party." Having failed to file his transcript within 90 days from the time his appeal was granted in the circuit court, the appellant on the 25th day of January, 1900, was granted an appeal by the clerk of this court, under section 1018 above quoted. This was 3 years, 9 months, and 11 days after the judgment was rendered in the circuit court. Section 1027, Sand. & H. Dig., reads as follows: "An appeal or writ of error shall not be granted, except within three years next after the rendition of the judgment or order, unless the party applying therefor was an infant, married woman, or of unsound mind at the time of its rendition, in which case an appeal or writ of error may be granted to such parties, or their legal representatives, within one year after the removal of their disabilities, or death, whichever may first happen." It does not appear that the appellant is within the saving clause of this statute.

But that section of the digest was amended by an act approved March 16, 1899. See Acts 1899, p. 111. The first section of that act is almost a verbatim copy of section 1027, Sand. & H. Dig., except that it changes the time for taking an appeal from three years to one year. Section 2 of the act reads as follows: "That parties to all judgments, orders or decrees rendered within two years prior to the passage of this act, shall have one year from the time it shall take effect within which to pray an appeal or sue out a writ of error. The time for taking an appeal or suing out a writ of error on all judgments, final orders and decrees rendered more than two years prior to the passage of this act, shall be three years from the date of the judgment, order or decree." Appellant does not come within the saving clause of this act, as the judgment herein was rendered 2 years, 9 months, and 2 days prior to the passage of this act.

Elliott, App. Proc. § 111, says: "The time within which an appeal must be taken is fixed by law, and the appeal must be taken within the time designated. The provision which limits the time is jurisdictional in its nature," — citing a large number of decisions. "It is only in cases where a party has been prevented by fraud or accident from taking an appeal within the limitation as to time fixed...