Cole v. Laud

35 Iowa 590

Opinion

Day, J.

The transcript was filed in the office of the clerk of the circuit court, on the 20th day of November, 1871. On the 18th day of February, 1872, being the first day of the next term of the circuit court, at the hour of 4 o’clock, P. M., the appellee paid the filing fee. One hour thereafter the appellant paid the filing fee. The cause was duly docketed for said term. On the second day of 'the term the appellee, pursuant to rule of court, filed his motion to dismiss the appeal and to affirm the assessment of damages below, upon the ground that the appeal had been taken more than ten days before the term, and that the filing fee had not been paid by or before the first day thereof. The rule referred to is as follows: “ In all cases of appeal from inferior courts, taken ten days or more before the succeeding term of the district (circuit) court, * * * if the filing fee be not paid by or before noon of the first day of the term, the appellee may pay the same, and at his election have the appeal dismissed, the cause continued, or the judgment affirmed with damages.” In resistance of the motion appellant filed affidavits excusing his neglect sooner to pay the filing fee. In principle, this case is not distinguishable from Hinman v. Weisner, 9 Iowa, 561. See, also, Squires v. Millet, 31 id. 169. Upon the authority of these cases, the judgment below must be

Reversed.