Opinion
(September Term, 1887.)
Appeal — Notice.
A failure to execute and file an undertaking on appeal within the time prescribed by law is not a mere "irregularity," and hence a motion to dismiss the appeal for such failure does not require the twenty days notice, as provided by the Act of 1887, ch. 121.
CIVIL ACTION, tried at May Term, 1887, of VANCE, before Merrimon, J., to recover damages for the seduction of plaintiff's daughter, by the defendant's testator. Defendant appealed.
H. T. Watkins, E. C. Smith and George H. Snow for plaintiff. (397)
A. C. Zollicoffer and L. C. Edwards for defendant.
(MR. JUSTICE DAVIS dissenting.)
This action, begun in February, 1886, is to recover damages for the seduction and debauchment of the plaintiff's daughter by the defendant William Fox, on whom service of process was made, and who dying before the trial, his, executrix, Emma Fox, was brought in by summons to defend in his stead. The averments in the complaint are explicitly denied in the answer of the original defendant, and both pleadings are supported by oath.
The cause was tried, and upon the findings of the damages upon the only issue submitted to the jury, judgment was rendered for the plaintiff in June, 1887, for the recovery of said damages, and the defendant appealed.
By consent of plaintiff's counsel the time for filing the undertaking was extended, and the defendant allowed until the first day of the next month (July) to put it in. The undertaking was not in fact executed until 22 August, and has been transmitted with the transcript of the record. Upon calling the cause in this Court the plaintiff moves to dismiss the appeal, for that the undertaking was not executed and filed within the enlarged time for doing so agreed upon by counsel at the time of trial.
The appellant insists that the appeal is barred by the Act of 1887, ch. 121, which provides that in appeals to this Court "before the appellee shall be permitted to move to dismiss said appeal, either for any irregularity in the undertaking on appeal, or for failure of the securities to justify, as prescribed in sec. 560 of The Code, he shall give written notice to the appellant of such motion to dismiss at least twenty days before the district from which the cause is sent up shall be called," and that such "notice shall state the grounds upon which (398) the motion is based."
The second section authorizes in all such cases the appellant at least five days before the district is called to file with the clerk of the Supreme Court a new bond a new bond (undertaking), justified as required in said section 560.
The appellant construes the words "irregularity in the undertaking" as including the delays in the execution of the undertaking, as well as defects in its form and structure, and hence the motion to dismiss cannot be entertained.
It must be remembered, however, that in a series of rulings we enforced the statutory mandate in requiring a compliance with those conditions, without which the appeal was unavailing. In limiting the extent to which our rulings had gone, the General Assembly did not restore the old practice, which admitted the filing of a new appeal bond, with leave of the court at the hearing when none had been given before, but had confined this remedial legislation to cases of irregularity in the instrument, such as an insufficient penal sum, and a deviation in other particulars of its provisions from the statute, and for want of a verification.
We do not feel at liberty to give the act a wider operation than its terms fairly interpreted will warrant, and more especially when, as here, the time has been prolonged by the counsel, and more than seven weeks beyond its limits were allowed to elapse before any action in that direction was taken by appellants.
In our opinion the difficulty is not obviated by the statute, but stands upon the footing of the law as it before existed.
The appeal must therefore be dismissed, and it is so ordered.