39 App. D.C. 350 | D.C. Cir. | 1912
delivered the opinion of the Court:
The appeal should have been taken from the judgment, and not from the refusal of the court to set aside said judgment. Tubman v. Baltimore & O. R. Co. 20 App. D. C. 541; Conboy v. First Nat. Bank, 203 U. S. 141, 145, 51 L. ed. 128, 130, 27 Sup. Ct. Rep. 50. But, aside from this, there is no merit in the appeal. While sec. 31 of the Code [31 Stat. at L. 1194, chap. 854] requires the clerk of the municipal court immediately to file in the office of the clerk of the supreme court the original papers when an appeal undertaking has been approved ' in the municipal court, and to notify the appealing party or his attorney thereof, the section must be given a reasonable interpretation. In the present case a bonding company was the surety on the appeal, and the bond, as a matter of course, was approved when filed on February 23d. The defendant, therefore, at that time knew that, under sec. 76, unless he perfected his appeal within ten days, the plaintiff might have judgment. The notice from the clerk would have added nothing to the knowledge he already possessed. The apparent purpose of the provision in sec. 31, requiring the. municipal court to notify counsel for the appealing party of the filing of the appeal papers in the supreme court, is that such attorney may be excused from watching the files'in the municipal court to ascertain the date of the approval of the appeal bond. The sureties on the bond may not be known to the court, and hence the bond may not be approved for several days after it is filed. As the provisions ■of sec. 76 are not applicable until the approval of the bond, Congress has in effect required that notice of such approval be given counsel filing it. The defendant himself admits that he received actual notice the day before judgment was entered for the plaintiff under sec. 76, and yet he did nothing until March 11th, when he filed the motion herein. He did not even then attempt to perfect his appeal.