State National Bank of Denison v. Cardwell , 1 Indian Terr. 311 ( 1896 )

Springer, C. J.

(after stating the facts.) This case is on all fours with the case of Turner vs Tapscott, reported in 29 Ark. 318. In that case the appeal was taken in the court below, without supersedeas, on the 27th day of February, 1873, but no transcript was filed in the Supreme Court until one year thereafter, when the appellants applied to and obtained from the clerk of that court another appeal, and thereupon filed the transcript. The court in that case stated that the question presented was as follows: ‘ ‘Has a party who has once taken an appeal, and failed to perfect it by filing the transcript in proper time, or the same has for any cause been dismissed, the right to take another appeal at any time in which appeals are allowed?” In that case the court cited Yell vs Outlaw, 14 Ark. 414, in which the Supreme Court of that state decided that, after an appeal had been taken and abandoned and afterwards dismissed by the appellant, he might have a writ of error in the same case. The Supreme Court of Arkansas, in the case of Turner vs Tapscott, supra, held that there was no distinction in principle, or difference in effect upon the rights of the parties, between a second appeal and a writ of error, taken after an appeal has been taken, and for any cause dismissed or abandoned. The same object is attained or sought whether the case is brought here by appeal or writ of error, and the same consequences follow the affirmation or reversal of the judgment. Pope vs Latham, 1 Ark. 66. The view taken by the Supreme Court of Arkansas is in accordance with the settled practice of the Supreme Court of the United States, which allows a party to take a second appeal within five years from the date of the rendition of the judgment, when the first has not been legally prosecuted or dismissed. Yeaton vs Lenox, 8 Pet. 123; U. S. vs Curry, 6 How. 106; The Virginia vs West, 19 How. 182; Castro vs U. S., 3 Wall. 46; U. S. vs Gomez, Id. 752. The Supreme Court of Arkansas, in the case of Turner vs Tapscott, held that the appellant, notwithstanding he took an appeal in the court below, but failed to perfect it by filing the transcript in time, still has a subsisting right to an appeal, and refused to dismiss the appeal then pending,- and suggested, as the better practice, that where the appeal, which does not have the effect to supersede the judgment or decree, is for any cause not prosecuted, the appellant should make application to the appellate court to have the case docketed, and then ask to have the same dismissed before applying for a second appeal. We concur with the Supreme Court of Arkansas in this view of the case, and also concur with that court in its opinion in the case of Turner vs Tapscott, supra. The same doctrine has been held by the Supreme Court of Arkansas in Kinner vs Dodds, 35 Ark. 30; Sanders vs Moore, 52 Ark. 377, 12 S. W. 783; Barstow vs Railway Co., 54 Ark. 553, 16 S. W. 574. The motion to dismiss the appeal is overruled.