Bryan v. Maume

By the Court,

Currey, J. This action was commenced on the 14th of January, 1864, to recover the amount due from the defendant Maume, on a promissory note made in 1854, and which became due in 1855, and to foreclose a mortgage on certain real estate, executed to secure its payment. A judgment and decree was rendered in the case in favor of the plaintiff on the last day of May, 1864, and on the next day notice of the decision of the Court was served on the attorneys for the defendants. On the application of the defendant McMinn, the Court made an order on the 20th of June, 1864, that the time for preparing and filing the statement on appeal from judgment be extended twenty days. On the 7th of July, 1864, the same defendant filed his notice of appeal from the judgment to the Supreme Court, and served a copy of it on the plaintiff’s attorney. This appeal was perfected on the eleventh of that month. On the ninth of the same month the Court, on the application of the defendant, McMinn, made another order of the same character, extending the time for twenty days more. The statement was prepared and filed on the 28th of the same July, and a copy of [240]it,was duly served. On the next day the plaintiff’s attorney gave notice that he .would move the Court on the 8th of August that this statement on appeal be stricken from the files of the Court, and that the same be disregarded, on the ground that it was not prepared and filed and a copy thereof served within the time allowed by law for such purpose, and on the same day the Court made an order granting to the plaintiff ten days after the decision of his motion within which to make amendments to the statement, in the event that the motion should be denied. The motion was made and denied, and amendments were accordingly prepared on behalf of the plaintiff to the statement, to which the defendant McMinn refused to agree, and therefore gave plaintiff notice of appearance before the Judge who tried the cause for settlement. The plaintiff’s attorney admitted service of the notice, reserving at the same time the right to object that the statement was not filed in time and that the Judge had no right to settle the same. The statement was afterwards settled and filed.

The plaintiff, in due time after the cause was placed on the calendar of this Court for argument, objected to the transcript on the ground that the statement contained therein was not filed within the time allowed by law. This objection is first to be. disposed of, and, if well taken, precludes an examination' of the errors assigned, depending for determination upon the matters embodied in the statement.