Elliott v. Chapman

Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring.

In this case, the defendants move to dismiss the appeal, on the ground that no undertaking was filed within five days after the filing of the notice. The notice was filed on the third of February, 1859, and on the seventh the Court made the following order: “ On motion of attorney for plaintiffs, it is ordered by the Court that plaintiffs have the full period of twenty-five days, in which to file their undertaking on appeal, and that proceedings herein be stayed until that time.” It is contended that the effect of this order was to enlarge the time between the filing of the notice and the undertaking. If we did not consider ourselves bound by the provisions of the statute, we should be inclined to adopt this construction, as substantial justice would undoubtedly be promoted by it. But we think the undertaking must, in all eases, be filed within five days after the notice, and that the Court has no power to extend the time. The power to enlarge the time within which an act is required to be done, is expressly given in. certain cases; but this is not one of the cases in which the power is given, and upon the principle that expressio unius est exclusio alterius, the omission must be deemed to have been intentional, and the same effect must be given to [384]it as though the existence of the power were negatived in express terms. The true construction of sec. 348 of the Practice Act is, that an appeal shall not be effectual for any purpose, unless an undertaking be filed, or a deposit made with the Clerk within five days after the filing of the notice; and if this be the construction, it is clear that the failure to file the undertaking, or make the deposit, is fatal to the appeal. The consequence attached to the failure is, that the appeal shall not be effectual, and this consequence can only be enforced by giving full effect to the provision as to time. If we hold that this provision is merely directory to the parties, nothing is required to give jurisdiction to this Court but the filing and service of the notice. We do not see upon what principle such a construction could be maintained. It is true, sec. 337 provides that the appeal shall be taken by filing a notice with the Clerk and serving a copy upon the adverse party, or his attorney, but this section must be construed in connection with sec. 348, by the provisions of which an undertaking ór deposit is absolutely necessary to give effect to the appeal. The notice is the first step in the proceeding, which ripens into a perfect appeal upon a compliance with the terms of the latter section.