111 Tenn. 294 | Tenn. | 1903
delivered the opinion of the Court.
This case involves a contest instituted by the defendant in error in the county court of Rhea county against the plaintiff in error over the office of the clerk of the county court of that county. On the ninth day of July, 1903, that court formally adjudged the defendant in error to have been duly elected to that office at the election held in August, 1902, and that he was entitled to recover from the contestee all the costs incident to the litigation.
From this judgment the contestee prayed and was granted an appeal to the next term of the circuit court to be held for that county. That term began, under the law, and as a matter of fact, on the eleventh day of August succeeding. On that day one of the attorneys of the contestee, the plaintiff in error, appeared in open court and presented his own affidavit, in which he undertook to explain the failure of the contestee to present and file a transcript of the record in the case, and also a certified copy of the judgment rendered by the county court, and upon these papers moved the court to set the
There was no error committed in the court below. By section 4879 of Shannon’s Code it is provided that “any persons dissatisfied with the sentence, judgment, or decree of the county court may pray an appeal to the circuit court of the county unless it is otherwise expressly provided by this Code.” It is under this section that persons dissatisfied with the judgment of the county court in election contests have their remedy. Dodd v. Weaver, 34 Tenn., 670.
This appeal must be to the next term of the circuit court, if more than five days intervene between the date of the appeal and the first day of the term. Shannon’s Code, section 4881. It is provided, by section 4882, that a “transcript of the record of the suit on which the appeal, is made shall be delivered to the clerk of the cir-
These provisions were brought forward into the Code from sections 54, 63, and 66 of the Act of 1794, chapter 1, with a single modification, in this: that whereas, by section 66 of that act, the transcript was to be delivered to the clerk of the circuit court at least fifteen days before the sitting of the term to which the appeal was taken, it is now provided by sections 4882 and 4883, referred to above, that the transcript shall be filed, under the penalty of affirmance-of the judgment of the lower court, by the first day of the term. Beginning as early as the case of Stuart v. Pasmore, 5 Hayw., 30, the provision of section 66, chapter 1, of the original act, was held to be mandatory, and that on the failure -of the plaintiff in error to file the transcript within the time limited therein it was imperative upon the circuit court to affirm the judgment appealed from.
This rule was followed in Duncan v. McGee, 7 Yerg., 103, the court saying that the purpose of the act was to enable the parties to bring the case to a speedy trial, and that the judgment of the lower court must be affirmed if the record is not filed in time, even though filed before the motion for an affirmance is made. Again, in the same volume, on page 305, 27 Am. Dec., 505, in the
In Gregory v. Burnett, 1 Humph., 60, it was held that the failure on the part of the appellant in that casé to comply with the mandate of the statute precluded a rehearing of the facts of the case and settled the rights of the respective parties, and that the judgment should be affirmed even though it might appear that the judgment of the county court, upon the facts, was erroneous. The statute was again recognized and applied to an appeal from the county to the circuit court in the case of Turnpike Co. v. Quinby, 8 Humph., 481.
So far as we can discover, there was no departure from the line laid down in these early cases up to the adoption of the Code in 1858. And it must be assumed that when this section was brought forward it was the legislative intent that the Code provision should have the same construction as was given by these authorities to the early act. For a long period of years, by courts and text-writers, it has been recognized as a sound rule that “a settled judicial construction put upon a statute
No sound reason has been assigned why there should be a departure from a construction so long adhered to; rather, in fact, the same reason exists for a rigid enforcement of this statute as was given by the court in Duncan v. McGee, supra, and that is, to bring the cause to a speedy trial. If the statute was not held to be mandatory, it would be possible for an unscrupulous appellant to withhold the transcript to a day in the term when, on account of the pressure of other and preceding- causes, a postponement of a trial to another term would be inevitable.
The next question is, was the statute satisfied by the filing of the affidavit and the certified copy of the judgment of the county court on the .first day of the term? The statute itself answers this question.. It is “the transcript of the record of the shit on which the appeal is made” which is to be delivered to the clerk on that day — that is, a transcript of the whole record-upon which the lower court acted in delivering its judgment.
It is insisted, however, that, conceding, all this to he
The result is that the judgment of the circuit court is affirmed, and this cause is remanded to the county court, requiring that court to oust plaintiff in error from the office of county court clerk and properly induct the defendant in error into the same.