114 Tenn. 426 | Tenn. | 1904
delivered the opinion of the Court.
In this case there was a judgment rendered by a justice of the peace, from which the plaintiff in error appealed to the circuit court. The magistrate failed to file the papers in the cause as required by section 4873 of Shannon’s Code, so that, a few days after the term of the court to which the appeal was taken began, defendant in error presented the papers and moved for an affirmance of this judgment. The motion was resisted by the plaintiff in error, and at the same time the. court was asked to permit the latter “to prosecute his appeal.” This was denied, and the affirmance was entered in accordance with the motion of the defendant in error.
The action of the circuit court in this regard is assigned for error. The section referred to provides as follows: “Whenever an appeal shall be prayed and perfected from the decision of any justice of the peace in this State, it shall be the duty of said justice to file the papers in the case in the office of the clerk of the circuit court at least five days before the meeting of the circuit court. . . . Any justice of the peace failing to comply with this - section shall have no fees or costs.”
Section 4874 provides thus: “If the papers are not filed within the time prescribed, the appellee may on production thereof have an affirmance of the justice’s judgment with costs.”
These two sections are taken from the act of 1809. In
It is insisted, inasmuch as it was not the fault of the plaintiff in error that the papers were not filed within the time required by law, it should have been permitted to prosecute its appeal, and that, taking these sections of'the Code together, it is evident the legislature intended the judgment of affirmance should follow a default in prosecuting an appeal after the papers were returned, and not the default of the justice in failing to return the papers in time. This contention is rested on Humphrey v. Humphrey, 1 Swan, 154. That case was de
In other words, we think that after the papers have been produced by the appellee, with a motion for a judgment of affirmance because of the fault of the magistrate, this motion cannot be intercepted by a counter motion upon the part of the appellant to file the papers and prosecute his appeal, as provided for in section 4875. It is otherwise, however, where the papers are presented by the magistrate.
In addition, it is to be noted that the present case is distinguishable from the case in Swan in this: In that case the papers were produced in open court by the justice of the peace, when for the first time the appellee insisted upon an affirmance under the act of 1809, while in this the papers are produced by the appellee in strict accordance with the act. We .think in that case the motion to affirm came too late, while in the present the motion to prosecute the appeal.
This construction of these sections harmonizes with the system embracing appeals to the circuit court. In Hayes v. Kelley, 111 Tenn., 294, 76 S. W., 891, it was held that the provisions of the statute requiring that in certain cases, where an appeal has been prayed from the judgment of the county court to the circuit court, a transcript of the record shall be delivered to the clerk of the circuit court by the first day of the term to which
Save for tbe imperative, terms of tbe section in question, we would have no doubt tbe plaintiff in error would have been entitled, upon tbe facts presented, in tbe affidavits of its counsel to prosecute its appeal in tbe present case with a view to having tbe cause disposed of upon its merits. In tbe face, however, of its provisions we do not think this could be accorded. Tbe judgment of tbe lower court is therefore affirmed.