Swisher v. Hine, 10 Ark. 497 (1850)

Jan. 1850 · Arkansas Supreme Court

10 Ark. 497

Swisher et al. vs. Hine.

in computing the thirty days allowed for appealing from the judgment of a justice of the peace, the day on which the judgment was rendered may be excluded, to support the appeal.

Writ of Error to Yell Circuit Court.

E. P. Hine and wife, Elizabeth, sued Swisher and others, before a Justice of the Peace of Yell county, on a note made to said Elizabeth. Judgment in favor of plaintiffs on the 9th June, 1849. On the 9th July, following, Swisher appealed to the Circuit Court. At the first term of the Circuit Court thereafter, (the Hon. William H. Feilb, Judge, presiding,) appellees moved to dismiss the appeal for want of jurisdiction, because: 1st. There was no prayer for appeal: 2d. The appeal was not taken within thirty days from the date of the judgment: and 3d. There was no date to the appeal bond, nor order for the appeal. Appellant filed a cross motion, suggesting a dimunition of the Justice’s transcript, and asking for time to bring in the Justice to perfect the appeal, &c. The Court dismissed the appeal, and appellant brought error.

After error brought, the death of Mrs. Hine was suggested, and the cause progressed in the name of the surviving defendant.

Jordan, for the plaintiffs.

English, contra,

Mr. Justice Scott

delivered the opinion of the Court.

We deem it unnecessary to go into a disquisition upon the general question of the computation of time which for centuries has vexed the Courts when they have attempted to lay down a general rule applicable to all cases ; because, from our uniform course of legislation in favoring appeals from justices of the peace, we feel fully warranted in excluding the day of the rendition of the judgment in the computation of the thirty days within which an appeal may be taken. We, therefore, hold that, in the case before us, it was taken within the time allowed by law.

The other objections were clearly within the provisions of the 182, 183 and 187th secs. ch. 95, Digest, and until the Court below had first ascertained, in the manner pointed out by law, whether or not the appeal could have been perfected under these previsions, it should not have been dismissed.

Let the judgment be reversed and the cause be remanded.