Bryan v. Pinney

Arizona Supreme Court

Bryan v. Pinney

17 P. 97, 2 Ariz. 390, 1888 Ariz. LEXIS 10

CourtArizona Supreme Court

DecidedMarch 20, 1888

DocketCivil No. 242

StatusPublished

Cited by2 cases

This text of 17 P. 97 (Bryan v. Pinney) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bryan v. Pinney, 17 P. 97, 2 Ariz. 390, 1888 Ariz. LEXIS 10 (Ark. 1888).

Pincite

Opinion

BARNES, J.

In this ease appellee moves to dismiss the appeal on the ground that the transcript was not filed on the first day of the term. Section 938, Rev. St., provides that “it shall be the duty of the appellant or plaintiff in error to file a transcript of the record with the clerk of the supreme court on or before the first day of the nest succeeding term, held after the appeal was perfected, or the summons for writ of error was served, and that if after 30 days before the nest term it shall be filed at the next term.” In this case the final judgment was rendered on the' 13th day of December, A. D. 1887, and notice of appeal given; and bond was filed and appeal perfected on the 16th day of January, A. D. 1888. The regular term of this court began on the second Monday of January at Prescott. At that term the judges signed an order for an adjourned term of said court at Tucson March 1st, and an order for an adjourned term in June, at Prescott. Rev. St. U. S. § 1934, provides that the supreme court of Arizona may hold adjourned terms thereof at any time and place in the territory agreed upon by a majority of the judges of the court at any regular term thereof. The order for an adjourned term shall be signed by a majority of the judges thereof at a regular term of the court, and entered upon the minutes of the court, and any business which said court might do at any regular term thereof may be done at such adjourned term. It is insisted that this is not a term of court, but is merely an adjourned session of the January term, and hence that this transcript will -be due under the statute at the January term of this court, 1889. We are referred to the case of Bank v. Withers, 6 Wheat. 107. There the law provides that “said courts are hereby invested with the same power of holding adjourned sessions that is exercised in Maryland,” and the court held this did [392]*392not make the adjourned session a distinct session. There is a broad distinction between an “adjourned session” and an “adjourned term.” The word “session” méans a meeting of the court. Term has a definite meaning, well known and well understood. Counsel argues that the words “sessions” and “terms” are synonymous. If they are synonymous, then this is the next session of the court. It is evident, however, that it was the intention of the act of congress that these adjourned terms should be distinct and separate terms, and that the business transacted should be the same as at a regular term. However, section 938 above, provides that where a party is unable to file such transcript in the time limited by this section, from any unavoidable cause, the court shall, upon satisfactory proof thereof, permit such transcript to be filed at a later period. The appellant in this ease, upon what is deemed a sufficient showing, has made a cross-motion for leave to file the transcript; which motion is allowed.

Wright, C. J., and Porter, J., concur.

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BARNES, J.

In this ease appellee moves to dismiss the appeal on the ground that the transcript was not filed on the first day of the term. Section 938, Rev. St., provides that “it shall be the duty of the appellant or plaintiff in error to file a transcript of the record with the clerk of the supreme court on or before the first day of the nest succeeding term, held after the appeal was perfected, or the summons for writ of error was served, and that if after 30 days before the nest term it shall be filed at the next term.” In this case the final judgment was rendered on the' 13th day of December, A. D. 1887, and notice of appeal given; and bond was filed and appeal perfected on the 16th day of January, A. D. 1888. The regular term of this court began on the second Monday of January at Prescott. At that term the judges signed an order for an adjourned term of said court at Tucson March 1st, and an order for an adjourned term in June, at Prescott. Rev. St. U. S. § 1934, provides that the supreme court of Arizona may hold adjourned terms thereof at any time and place in the territory agreed upon by a majority of the judges of the court at any regular term thereof. The order for an adjourned term shall be signed by a majority of the judges thereof at a regular term of the court, and entered upon the minutes of the court, and any business which said court might do at any regular term thereof may be done at such adjourned term. It is insisted that this is not a term of court, but is merely an adjourned session of the January term, and hence that this transcript will -be due under the statute at the January term of this court, 1889. We are referred to the case of Bank v. Withers, 6 Wheat. 107. There the law provides that “said courts are hereby invested with the same power of holding adjourned sessions that is exercised in Maryland,” and the court held this did [392]*392not make the adjourned session a distinct session. There is a broad distinction between an “adjourned session” and an “adjourned term.” The word “session” méans a meeting of the court. Term has a definite meaning, well known and well understood. Counsel argues that the words “sessions” and “terms” are synonymous. If they are synonymous, then this is the next session of the court. It is evident, however, that it was the intention of the act of congress that these adjourned terms should be distinct and separate terms, and that the business transacted should be the same as at a regular term. However, section 938 above, provides that where a party is unable to file such transcript in the time limited by this section, from any unavoidable cause, the court shall, upon satisfactory proof thereof, permit such transcript to be filed at a later period. The appellant in this ease, upon what is deemed a sufficient showing, has made a cross-motion for leave to file the transcript; which motion is allowed.

Wright, C. J., and Porter, J., concur.

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Bluebook (online)

17 P. 97, 2 Ariz. 390, 1888 Ariz. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryan-v-pinney-ariz-1888.

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