Vance v. Schuyler, 5 Ill. 285, 4 Scam. 285 (1843)

Dec. 1843 · Illinois Supreme Court
5 Ill. 285, 4 Scam. 285
John Vance v. Robert Schuyler et al.

John Vance v. Robert Schuyler et al.

Appeal f>om McDonough.

I. Appeal — practice on. An appeal from a circuit court to the supreme court can only be taken or made in term time, although perfected afterwards. Where thirty days in.v.vene between the date of the order of the court granting the appéal, and the first day of the n ext term of the supreme court, the record must be filed within the first three days of that term, although the time between the filing of the bond and the next term of the supreme court may be less than thirty days. (b)

*297The appeal in this cause was prayed and granted in the Mc-Donough circuit court, on the 22d day of October, 1842, upon condition that the defendant should enter into bond,-etc., within thirty days from that date. The December term, 1842, of the supreme court, commenced on the 1st Monday of December. The appeal bond was filed on the 22d day of November. The appellant having failed to file the transcript of the record within the first three days of the December term, 1842, the appeal was dismissed, on motion of the appellees.

• At the December term, 1843, W. A. MiNSHAll, for the appellant, moved the court to vacate the order dismissing the appeal, and to re-instate the cause on the docket;

Because there were not thirty days intervening between the time of making the appeal and the nest succeeding term of the supreme court. He insisted that, the time must be computed from the day the appeal bond was entered into, and not from the date of the order, or the term of the court at which judgment was rendered. Pract. Act, R. L. 495.

The statute must be cpnstrued liberally and favorably to the appellant, to enable him to bring his cause here for further adjudication by the constitutional mode, which is by appeal. Const., R. L. 42, § 2.

The words used in the statute must receive the most natural and obvious import, without resorting to subtle and forced constructions, for the purpose of either limiting or extending them. 1 Kent’s Com. 462 ; 20 Wend. 561.

The words “ making the appeal ” cannot, either in legal or common parlance, be understood to mean any other time than the time of entering into the appeal bond, which is the time of completing the appeal. The appeal cannot be said to be made from the time of- performing any one of the preliminary steps, but is only made on complying with the condition, and entering into the bond, in pursuance of the order of the court. The reason of this expression and this construction accords with the intention of the legislature, in giving the appellant the [*287] largest time possible, to get his case before the court of appeals.

This court has given the statute granting appeals a liberal construction favorable to the appellant, in construing § 32 of the act. Balance v. Frisby, 1 Scam. 595.

O. H. BROWNING-, for the appellees, resisted the motion.

Per Curiam, Thomas, Justice:

The motion to reinstate the cause on the docket is overruled, it appearing that more than thirty days intervened between the order of the court allowing the appeal (which is “ the making the appeal within the meaning of the 33d section of the practice act) and the first day of the next term of the supreme court.

*298An appeal from the circuit court to the supreme court can only be taken or made in term time, although perfected by the appellant by his act, in pais, in vacation; aliter, in appeals from a justice of the peace to the circuit court.

Wilson, Chief Justice,

said he t'ook a different view of the case. He supposed that the law fixed the appeal, and the order of the court only fixed the time for its perfection.

Shields, Justice,

said he had also taken a different view; that he supposed the appeal was not taken until the bond was executed.

Treat, Justice, agreed with Justice Shields.

Justice Young said he agreed with the majority of the court.

Motion overruled.