57 Iowa 77 | Iowa | 1881
Lead Opinion
The facts necessary to be stated are: That the defendant McKenzie, obtained a judgment in an equitable action in the District Court against the plaintiff. Thereupon the plaintiff served the requisite notices for an appeal to the Supreme Court, and also filed a supersedeas bond. Afterward, and before the term of the Supreme Court, to which the appeal was returnable, the plaintiff caused a notice to be served that he had withdrawn said appeal, and on the same day commenced an action or special proceeding to vacate said judgment, and for a new trial. The latter was granted, and the defendant McKenzie, appealed to the Supreme Court and filed his supersedeas bond. Afterward, ou motion of said McKenzie, the judgment from which plaintiff appealed was affirmed by the Supreme Court on the ground he had failed to prosecute his appeal. Upon a proper showing being made, the judgment of affirmance was set aside. And thereafter the Supreme Court made the following order: On this day it appearing to the court that after the appeal had been taken the appellant was granted a new trial in the court below, and
Afterward an execution was issued on the judgment rendered in the action in which a new trial had been granted, and thereunder the real estate sold. To set aside said sale and deeds made in pursuance thereof, is the object of this action.
The real estate was purchased by certain persons who are made defendants. After said sale had been made, the appeal of McKenzie from the order of the court granting a new trial was determined by the Supreme Court, and the same reversed. Loomis v. McKenzie, 48 Iowa, 416.
It is provided by statute that “ an appeal shall not be perfected until notice thereof has been served upon both the party and the clerk, and the clerk paid or secured his fees for a transcript.” Code, § 3179.
This statute has been in-force for several years, but the question has never been presented to this court what effect the failure or refusal of the appellant to pay the clerk’s fees for the transcript has upon the appeal.
The statute seems to contemplate there may be an appeal as distinguished from a perfected appeal, for it is provided an appeal is taken by the service of the requisite notices (Code, § 3178), and then the following section, quoted above, declares when such appeal shall be regarded as having been perfected. There does not seem to be any room for construction in this statute. The language can be readily understood, and it declares in terms that the appeal is not perfected until the fees for the transcript are paid or secured. In a statutory sense, this is just as important and essential as the service of the requisite notices.
We have no occasion to determine the effect of an unperfected appeal further than that it cannot have the effect in and of itself to remove the cause from the jurisdiction of the court below. As the appeal had not been perfected, the appellee had the right to the process of the court to enforce it. Tins being so, it follows necessarily the court had the power and jurisdiction to refuse such process by granting a new trial.
Whether the appellee can have such an appeal affirmed or dismissed and obtain in this court a judgment on the supersedeas bond is not in this case. Nor is it essential that we should determine whether the appellant can dismiss or with
Conceding the clerk did order an execution to be returned when the notices of appeal were served and the supersedeas bond filed, this should not estop the plaintiff from showing the appeal had not been perfected. The action of the clerk should not prejudice the plaintiff, besides this he was simply mistaken when it became his duty to regard the appeal as having been perfected.
VII. The judgment was not in form set aside or vacated.
It is admitted on all hands, we believe, that a purchaser at execution sale must, in order to sustain his title to property purchased thereunder, show a valid judgment and execution. Rorer on Judicial and Execution Sales, § 641.
This being so the sale and deeds were properly set aside and the rights of the purchasers sufficiently protected in the decree.
It is sufficient to say as to the plaintiff’s appeal that it must be regarded as abandoned because not argued by counsel.
Affirmed on both appeals.
Rehearing
ON REHEARING.
Conceding the plaintiff did assert in the petition tor a new trial he had taken and perfected an appeal, the question is what effect such assertion should have in this action. Such allegation was wholly immaterial. The plaintiff by filing the petition for a new trial claimed, in substance, the court had jurisdiction and the power to grant the relief asked. Instead of so showing the allegation as to the appeal, if true, would have shown the court did not have jurisdiction. The new trial was refused on other grounds and therefore the asserted fact had no effect whatever on that litigation. For this reason and because we do not think any of the defendants relied on the assertion and predicated action thereon, we do not think the plaintiff should be estopped from proving the truth.
The petition for a rehearing is overruled.