Chapman v. Lobey, 21 Iowa 300

21 Iowa 300 | Iowa | 1866

Cole, J.

This cause was tried before a justice of the peace, on the 8th' day of March, 1865. The defendant filed his. appeal bond with the justice on the 11th day of March, but there was no revenue stamp affixed thereto. The transcript was properly made out and duly filed in the office of the clerk of the District Court. At the first term and on the 16th day of May, 1865, the plaintiff filed his motion to dismiss the appeal, because there was no revenue stamp on the appeal bond. ■ After the motion was made and before it was decided, the defendant affixed to the bond and canceled a proper revenue stamp. On the 19th day of May, the motion to dismiss the appeal was sustained. On the next day (May 20th) the defendant asked and obtained leave .to take the bond from the files for the purpose of stamping it before the proper revenue officer. The revenue stamp was affixed and canceled, and the penalty for previous failure to stamp was remitted by the deputy collector, on the 8th day of March, 1866; and on the 16th day of March, 1866, the defendant filed his affidavit' and motion to'reinstate the cause. This motion was overruled, and the defendant excepted.

i. pbacjeettonnot made below. I. The counsel for appellant raises and discusses the constitutionality of the revenue law, so far as it requires the affixing of a stamp to a legal process, or notice of appeal. But, since the defendant did not accept to the decision of the court dismis. sing Ms appeal, there is no question thereon for us to determine.

2: — — mo-state. II. The motion to reinstate the cause was not filed until about ten months after the appeal was dismissed. The granting or refusing such motion is, to a very great degree, a matter of discretion,; and where, as in this case, there has been an unreasonable delay in mating it, and it is then made without any notice to, or appearance by, the adverse party, an appellate court would not be justified in reversing this order, refusing to reinstate it, even if it had been wrongfully dismissed.

Affirmed.