Miller v. Murray

Bryan, J., delivered the opinion of the Court. An order of Court was passed on the 13th of December, 1888, overruling certain exceptions to an auditor's, report. It appears both from the admission of the counsel for the appellant and the affidavits filed in the cause, that no appeal was entered in the cause until the 20th of February, 1889. This was more than two months after the date of the order, and was too late.

A motion has for this reason been made to dismiss the appeal. A verbal order for the appeal was given to the clerk of the Court below on the sixth day of February. If this was effectual, the appeal is saved. By the ninth rule of this Court it was. required that appeals from equity should he “taken and entered” within nine months from the date of the decree or order which was the subject of the appeal.

By the twenty-seventh rule the time was reduced to two months. The rule in reference to appeals from Courts of law'requires that they shall he taken ⁶³ within a limited time, but does not say that they shall be “taken and entered.” It is not probable that a different rule for appeals was intended in the two cases. The language of the equity rule is copied from the fourteenth section of the Act of 1826, chapter 200. The ninth rule of this Court was simply a reproduction of that section.

By the Act of 1729, chapter 3, appeals from the Court of Chancery were directed to be prosecuted in the same manner as appeals from a Court of law. The Act of 1826, chapter 200, repealed all previous legislation on the subject of appeals and writs of error. By the second section it wras provided that an appeal in law or equity might be made, either in Court or by application to the clerk during vacation. And on such application the clerk was directed to enter an appeal in the usual manner.

The sixth section directed that when an appeal was entered in Court, the clerk should make out and transmit a transcript of the record; and the fourteenth section is