Geo. E. Keith Co. v. January

199 S.W. 89, 131 Ark. 389, 1917 Ark. LEXIS 155

• Court: Supreme Court of Arkansas
• Decided: November 26, 1917
• Status: Published

Opinion

WOOD, J.

This cause was tried in a justice of the peace court on September 6, 1916. Plaintiff gave notice of appeal, and an affidavit for appeal was filed on September 12, 1916. The circuit court convened on September 18, 1916. The transcript of the justice’s docket relating to the cause was filed on March 8, 1917. The defendant moved the court to dismiss .the appeal, which motion was granted, and from a judgment dismissing the appeal the cause is here.

The statute provides that on or before the first day of the circuit court next after the appeal shall have been allowed the justice shall file in the office of the clerk of such court a transcript of all the entries made in his docket relating to the cause, together with all the process and all the papers relating to such suit. Kirby’s Digest, § 4670.

It was the duty of the plaintiff below to see that his appeal was perfected on or before the first day of the circuit court next after the time of the filing of his affidavit, which, together with the notice and prayer for appeal, constituted the steps that were necessary for him to take in order' to have his appeal allowed. While the statute makes it the duty of the justice to file the transcript, it is nevertheless the duty of the party taking the appeal to see that this is done. Hughes v. Wheat, 32 Ark. 292; Wilson v. Stark, 48 Ark. 73: Carden v. Bailey, 87 Ark. 230.

Where the transcript is not lodged on or before the first day of the term of the circuit court next after the appeal is allowed and no excuse for the delay is shown, the circuit court may dismiss the appeal or affirm the judgment for the lack of proper diligence on the part of the appellant in prosecuting his appeal. Carden v. Bailey, supra; Bates v. Mitchell, 96 Ark. 555; Hart v. Lequieu, 110 Ark. 284.

The judgment is, therefore, correct, and it is affirmed.