48 Ark. 73 | Ark. | 1886
OPINION.
When an affidavit for an appeal from a judgment of a justice of the peace is filed, the judgment superseded and the appeal not perfected until the time prescribed by the statute has expired {Mansf. Dig , sec. £139), and a satisfactory excuse is not given for the delay, the judgment of the justice may be affirmed by the circuit court and judgment rendered against the sureties in the appeal bond. Smith v. Allen, 31 Ark, 268; McGehee v.Carroll, ib., 558; Hughes v. Wheat,32 ib., 292: Whittaker v.'Tracy, 41 ib., 259.
II. It is the appellant’s duty in such a case to see that his appeal is perfected in time, and if he relies on the justice of the peace, cr upon his attorney, to see to it for him, and it is neglected, the default comes through his own want of diligence. Cases supra.
III. The fact that an order has been made in the case previous to the filing of the motion to affirm, does not deprive the court of the power to exercise its discretion to grant the prayer of the motion.
The court should regard the general appearance of an appellee to the cause as a waiver of the delay; but the appearance in this cause was solely for the purpose of dismissing the appeal, and could not be so construed. It is true his first motion was to dismiss for want of an affidavit for appeal, and when this was denied it was renewed to dismiss or affirm for delay in prosecution, but neither effort recognized the appellant’s standing in court.
"We cannot say there was an abuse of official discretion, and the judgment is affirmed.