Pratt v. Western Stage Co.

26 Iowa 241 | Iowa | 1868

Dillon, Ch. J.

1. Appeal: to Supreme Court: affirmance of judgment on motion. — This is a motion by the appellee, made under section 3515 of the Revision, to affirm the judgment below. The appellant resists the motion, because, as he claims, the appeal was uot taken and perfected in .time for the present qjev. g 3513. The record shows that •the supersedeas bond (Rev. § 3527-28) was filed more than fifteen days before the first day of the present term of the Supreme Court. But it also shows that the notices of appeal to the clerk and appellee (Rev. § 3509) were served on both of them within fifteen days.

2.- requisites of an appeal: effect to supersedeas bond. By the statute, an appeal is not perfected until service of a notice of appeal. Rev. §§ 3509, 3511, 3513. Merely filing a supersedeas bond does not amount to the taking of an appeal. If such bond is filed, and no notice of appeal is given, at least to the clerk, the latter officer should not recall an execution, or issue an order to stay proceedings thereunder.

In other words, the execution of a judgment should not be stayed unless a supersedeas bond is filed and approved, and unless also notice of appeal is served, at least upon the clerk. As clerks have been in the habit, to some extent, of staying proceedings upon the mere filing of a bond, and as a number of cases similar to the present, have been before the court, in which by filing the bond and delaying to serve notices of appeal until within fifteen days of the first day of the term of this court, the appellants (in consequence of the misunderstanding of the law by the clerk) have succeeded in securing delays to which they are not entitled, we have thought it important to point out, as we have done, the duty of the clerks.

3.-affirmance of judgment on notice to clerk. It may also be remarked, that we have several times held, on motion, that under sections 3514 and 3515, of the Revision, an appellee may, in proper cases, have an affirmance by showing that the clerk kaB peen serveci in time with notice of appeal, and without showing that the party has also been served. with such a notice. Motion denied.

Amos Harris for the motion. J. M. Ekoood, contra.