Wulff v. Davis

157 S.W. 384, 108 Ark. 291, 1913 Ark. LEXIS 27

• Court: Supreme Court of Arkansas
• Decided: May 19, 1913
• Status: Published

Opinion

McCulloch, C. J.

This is a companion ease to Wulff v. Claibourne, 107 Ark. 325, 155 S. W. 497, and every point now raised is concluded by the decision in that case, except the one that the appeal from the county court should have been dismissed because the affidavit for appeal was not filed until four days after the appeal was granted by tbe county court. That question was not, however, raised in tbe circuit court, and can not be raised bere for tbe first time. Appellant filed a motion in tbe circuit court to dismiss tbe appellee’s appeal from tbe county court, and assigned numerous grounds for dismissal, but did not raise any question as to failure to file an affidavit before tbe order was made granting tbe appeal. Tbe first time tbis was referred to was in tbe motion for new trial filed several days after tbe final judgment of tbe circuit court was rendered upon tbe merits of tbe cause.

Tbe filing of an affidavit was a prerequisite (Walker v. Noll, 92 Ark. 148), but was waived by appellant’s appearing and taking substantive steps without moving to dismiss tbe appeal on that ground. Ex parte Morton, 69 Ark. 48; Stricklin v. Galloway, 99 Ark. 56.

Tbe judgment of the circuit court is therefore affirmed.