48 Iowa 206 | Iowa | 1878
Section 3183 of the Code is as follows: “If, the transcript
Eule 2é ‘of this court provides, “If, the transcript and abstract being filed, errors are not assigned by the morning of the first day devoted to causes from the district whence comes the appeal, the appellee may, on motion, have the appeal dismissed, or the judgment or order affirmed, unless .good cause for the failure is shown by affidavit. ”
There is an apparent conflict between the statute and the rule, unless it can be held the court can dispense with filing an assignment of errors previous to the day devoted to a consideration of causes from the district whence comes the appeal. And if the errors are served on the appellee by the time required by the statute, it would seem he could not justly complain of the mere non-filing of the same with the clerk. We are not prepared to say he would suffer any prejudice by the failure to file as the statute provides. It is unnecessary to determine this question, and we do not do so. It is clear, however, the rule is based on the foregoing theory, for it makes no proAÚsion as to the service of the errors on the appellee. The statute, therefore, clearly governs, and as the objection has been made and is insisted on, we have no discretion ip the premises, and the ■ motion must be sustained. The result would be the same if the “ first day devoted to causes from the district whence comes the appeal, ” be held to be the first •day of the trial term, because such day was the 15th day of December, 1877, and the errors were not served on the appellee until the 8th day of said month, or less than ten days previous thereto.
Appeal dismissed.