{
  "id": 1354014,
  "name": "Billingsley v. Adams",
  "name_abbreviation": "Billingsley v. Adams",
  "decision_date": "1912-03-04",
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  "first_page": "511",
  "last_page": "513",
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      "cite": "102 Ark. 511"
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    "id": 8808,
    "name": "Arkansas Supreme Court"
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    {
      "cite": "19 Ark. 647",
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        8727096
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      "weight": 4,
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  "last_updated": "2023-07-14T16:46:02.304731+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Billingsley v. Adams."
    ],
    "opinions": [
      {
        "text": "McCulloch, C. J.\nAppellee sued appellant on a promissory note before a justice of the peace, and recovered a judgment, from which an appeal was taken to the circuit court. At the first term of the circuit court there were no proceedings in the cause, except that on application of appellant the cause was continued to the next term; and at the next term appellee moved for dismissal of the appeal on the ground that no affidavit for appeal had been filed. Appellant offered to file a substituted affidavit, but the court denied the request on the ground that no affidavit had been filed with the justice of the peace, and dismissed the appeal. From that judgment an appeal to this court has been prosecuted.\nThe evidence heard by the court is not abstracted. Therefore, we must indulge the presumption that the court\u2019s finding that no affidavit for appeal had ever been filed with the justice is sustained by sufficient evidence. The filing of an affidavit is prescribed by statute as a prerequisite to an appeal, and unless waived is ground for dismissal. Merrill v. Manees, 19 Ark. 647.\nAppellee did not take any substantive steps in the case before moving for the dismissal of the appeal; and mere delay from one term to another, where appellant\u2019s rights were not prejudiced by the delay, did not constitute a waiver of the omission to file the affidavit. When the appeal was dismissed for want of an affidavit, it was error to render judgment on the appeal bond. The judgment of the court in dismissing the appeal is affirmed, but the judgment on the bond is reversed and quashed.",
        "type": "majority",
        "author": "McCulloch, C. J."
      }
    ],
    "attorneys": [
      "J. B. Baker, for appellant.",
      "Chas. F. Cole, for appellee."
    ],
    "corrections": "",
    "head_matter": "Billingsley v. Adams.\nOpinion delivered March 4, 1912.\n1. Appeal and error \u2014 presumption where evidence is not abstracted. \u2014 Where the evidence heard by the trial court is not abstracted, it will be presumed that the court\u2019s finding was sustained by sufficient evidence. (Page 512.)\n2. Justice op the peace \u2014 appeal\u2014necessity of affidavit. \u2014 The filing of an affid\u00e1vit for appeal is prescribed by the statutes as a prerequisite to an appeal from a justice of the peace, and unless waived is ground for dismissal. (Page 513.)\n3. Same \u2014 motion to dismiss appeal \u2014 effect of delay. \u2014 Mere delay from one term to another before moving to dismiss an appeal from a justice of the peace for want of an affidavit for appeal, where the rights of the party appealing were not prejudiced by the delay, did not eonstitute a waiver of the omission to file the affidavit. (Page 513.)\n4. Same \u2014 effect of dismissing appeal. \u2014 Where an appeal from a justice of the peace is dismissed for want of an affidavit, it was error to render judgment on the appeal bond. (Page 513.)\nAppeal from Izard Circuit Court; J. W. Meeks, Judge;\nreversed in part.\nJ. B. Baker, for appellant.\n1. The affidavit for appeal and the payment of the fee for transcript is all that is requisite for an appeal. Kirby\u2019s Digest, \u00a7 4666; 19 Ark. 647; 96 Id. 332. If there was no appeal, the circuit court had no jurisdiction, and the court erred in affirming the judgment. 19 Ark. 647; Kirby\u2019s Digest, \u00a7 4664.\n2. It was error to render judgment against the bondsmen. Kirby\u2019s Digest, \u00a7 4666; 19 Ark. 647.\n3. The taking of an appeal consists of filing an affidavit with the justice. Kirby\u2019s Digest, \u00a7 4666, subd. 1, and \u00a7 \u00a7 4667, 4670-2-6-7; 67 Ark. 493; 70 Id. 102; 12 Id. 80. The oath was made and filed with the justice \u2014 that was all that was requisite. Kirby\u2019s Digest, \u00a7 4666; 35 Ark. 212; 96 Id. 332.\nChas. F. Cole, for appellee.\n1. No affidavit for appeal wasfiled. Kirby\u2019s Digest, \u00a74666; 19 Ark. 647.\n2. It is the duty of appellant to see that the appeal, is perfected in time. 48 Ark. 73; 31 Id. 268; 32 Id. 292; 31 Id. 558.\n3. The statutory requirements for an appeal can not be dispensed with. 2 Enc. PI. & Pr. 234; 24 Ark. 282; 7 Ark. 514; 10 Id. 308.\n4. The dismissal of the appeal necessarily gave judgment on the bond according to its terms:"
  },
  "file_name": "0511-01",
  "first_page_order": 535,
  "last_page_order": 537
}