Shaw v. Randall

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

A motion is made in this case to dismiss the appeal, upon the ground that no undertaking was filed within five days after the notice. A similar motion was made in Elliott v. Chapman, (ante) and we held that sec. 348 of the Practice Act, which requires an undertaking to be filed, or a deposit made within five days after the filing of the notice, is mandatory and imperative, and that a compliance with its provisions is necessary to give effect to the appeal. The able and ingenious argument of appellant’s counsel has failed to convince us that this section is susceptible of any other construction. The case of Rabe v. Hamilton, decided at the January term, is not in point. The sixteenth section of of the Act concerning Forcible Entries and Detainers merely provides that the party aggrieved may appeal within ten days, and that a bond shall be given containing certain conditions. No time is fixed within which the bond is to be filed, and no consequence is attached to a failure to file it. We held that the objection in that case did not go to the jurisdiction, but was addressed to the discretion of the Court, and that the failure to execute the bond did not necessarily defeat the appeal. The case at bar is essentially different. The undertaking is required to be filed within five days after the notice, and the evident meaning is that it must be so filed to render the appeal effectual for any purpose. Such is our understanding of the sense of the statute. In respect to the cases cited from New York, it is sufficient to say that the code of that State fixes no time within which the undertaking must be filed. In Wilson v. Allen (3 How. Pr. R. 369) the undertaking was defective, and the question was whether the Court had the power to allow.an amendment. Harris, J. in delivering .the opinion of the Court, said: “I am inclined to think, after a careful examination, that such an amendment as is necessary in this case, in order to conform the undertaking to the requirements of the statute, may be allowed under the general power given to the Court by the one hundred and forty-ninth section of the code.” In Langley v. Warner (Id. 383) the Court of [387]Appeals refused to permit an amendment where the undertaking failed to provide for the payment of costs, and the decision was placed directly upon the ground of a want of power in the Court. In the present case there is no question as to the power of the Court to allow an amendment. No undertaking was filed within the time limited by the statute, and the consequence is that there is nothing to amend. It is not the case of a defective undertaking, but of no undertaking at all. In construing the statute we must look to the language used, and endeavor, if possible, to ascertain the intention of the Legislature. That provisions in regard to time are generally to be construed as directory, is not disputed, but such a construction is improper where a consequence is attached to a failure to comply. In such a case, the consequence can be avoided only by a compliance with the statute.