Gardner v. Ingram

Gardner v. Ingram. Mandamus to Constable. 1. Limitation of appeal. — An appeal from a final judgment awarding a mandamus, under the statute approved February 12th, 1879 (Sess. Acts 1878-9, p. 150, § 3), must be taken within thirty days after the rendition of the judgment; and this court can not engraft any exceptions on the statute, nor admit any excuse for a failure to comply with its requirements. Appeal from the Circuit Court of Calhoun. Tried before the Hon. Lerox F. Box. The appellee in this case, John B. Ingram, obtained a judgment before a justice of the peace against S. A. Smith, on which an execution was issued, and placed in the hands of F. M. Gardner, the appellant, as constable, to be executed. The execution was levied by the constable, and a forthcoming bond taken for the property. On the 11th March, 1886, the plaintiff filed a petition for a mandamus to the constable, requiring him to return the forthcoming bond forfeited ; and an answer and return was duly made by the defendant to the writ nisi. The court sustained a demurrer to the answer and return, and granted a peremptory mandamus. This judgment was rendered on the 21st August, 1886,.and an appeal from it was sued out on the 30th April, 1887. The appellee submitted a motion to dismiss the appeal, on the ground that it was barred by the statute of limitations. Pearce, Kelly & Smith, for the motion. E.H. Hanna, contra. [MAJORITY — CLOPTON, J.] CLOPTON, J. — The appeal is taken from tines' final judgment of the Circuit Court awarding a mandamus, in a proceeding under the act of February 12,1879. — Acts 1878-79. The third section of the act, which authorizes an appeal from the final judgment in such proceedings, provides : “ Every such appeal must be taken within thirty days after such final judgment is rendered, and not after that time.” The statute is imperative, and admits no excuse nor exception; and we are not authorized to regard any. More than thirty days from the rendition of the judgment elapsed before the appeal was taken. The motion to dismiss must be granted. Appeal dismissed.