Nicholson v. Newton

Jul 7, 1914
Reporters:
, ,

Opinion

Per Curiam.

1. The manner of taking an appeal in the Justice’s Court is regulated by the chapter of the code in relation thereto. Section 2458, L. O. L., ‍‌‌‌​‌‌‌​‌‌‌‌‌‌​‌​​‌​​‌‌‌​​​‌‌​​​​‌​​‌‌‌​​‌‌‌​​‌‌‌‌‌​​​‌‌‌​​‌‌‌​​​‌‌​​‌​​‌‌‌‌​‌​​​​​‌​​​​​​‌​​‌‌​‍provides that, within five days from the filing of the notice of appeal, an undertaking on appeal must be filed. Counsel for appellant argues that where counsel have acted in good faith, and have neglected to do something required within a certain time, they may be permitted to do the same; but ‍‌‌‌​‌‌‌​‌‌‌‌‌‌​‌​​‌​​‌‌‌​​​‌‌​​​​‌​​‌‌‌​​‌‌‌​​‌‌‌‌‌​​​‌‌‌​​‌‌‌​​​‌‌​​‌​​‌‌‌‌​‌​​​​​‌​​​​​​‌​​‌‌​‍these cases were under the section of the code relating to appeals to this court, and this section does not apply to appeals from Justices’ Courts. The filing of the undertaking was necessary to give the appeal validity, and the defect cannot be remedied by filing a new undertaking after the time ‍‌‌‌​‌‌‌​‌‌‌‌‌‌​‌​​‌​​‌‌‌​​​‌‌​​​​‌​​‌‌‌​​‌‌‌​​‌‌‌‌‌​​​‌‌‌​​‌‌‌​​​‌‌​​‌​​‌‌‌‌​‌​​​​​‌​​​​​​‌​​‌‌​‍has expired. The court below did not err in dismissing the appeal.

2, 3. As to the costs, there was an issue of law tried on the motion to dismiss, and the respondent is entitled to an attorney’s fee of $10. There is charged up to the appellant witness fees amounting to $39.20. This ‍‌‌‌​‌‌‌​‌‌‌‌‌‌​‌​​‌​​‌‌‌​​​‌‌​​​​‌​​‌‌‌​​‌‌‌​​‌‌‌‌‌​​​‌‌‌​​‌‌‌​​​‌‌​​‌​​‌‌‌‌​‌​​​​​‌​​​​​​‌​​‌‌​‍sum, we think, cannot be allowed. “A man cannot have his cake and eat it too. ’ ’ Counsel had ample opportunity to have filed his motion before the case *389came up for trial, and it would be unjust to allow him this large sum for witnesses when none were needed and none ‍‌‌‌​‌‌‌​‌‌‌‌‌‌​‌​​‌​​‌‌‌​​​‌‌​​​​‌​​‌‌‌​​‌‌‌​​‌‌‌‌‌​​​‌‌‌​​‌‌‌​​​‌‌​​‌​​‌‌‌‌​‌​​​​​‌​​​​​​‌​​‌‌​‍called.

Tbe judgment will be modified by striking out tbe sum charged for witnesses,, and otherwise affirmed; appellant to recover his costs in this court.

Modified and Affirmed.