Opinion
September 1804.
Where the appellant from the judgment of the County Court fails to prosecute his appear within the time prescribed by law, and the appellee brings up the record, he is entitled, as of course, to the judgment of affirmance with the percentage allowed. [See Suggs v. Suggs, ante 2; Anderson v. Anderson, 4 Hay. 255.]
Upon affirmance in the Appellate Court, the judgment carries interest upon the aggregate sum of debt and damages, or interest, for which the same is rendered. [See Code, 1948.]
WILKINSON, for the appellee, stated that the appeal was brought up to this court by the appellee, since the expiration of the time allowed by law to the appellant to file the transcript in the clerk's office of this court, which is fifteen days before the commencement of the term. Under the act which declares that if the appellant shall fail to prosecute his appeal, or the judgment below shall be affirmed, the appellant shall pay twelve and a half per cent, it was moved that the judgment be rendered here for the amount recovered below, with the percentage allowed by law, in consequence of the appellant's failing to prosecute his appeal.
The appellant had a right until fifteen days before the commencement of this term to prosecute his appeal; he failed, and could not afterwards do it.
The appellee, having brought it up, is entitled as of course, to the judgment prayed for, with his percentage.
WILKINSON then moved that the clerk of this court be directed, under the authority of an act passed November 7, 1803, c. 6, entitled "An act directing the mode of entering judgments in the courts of record within this State and for other purposes," to state when the judgment was rendered below, so as to enable the sheriff to collect the usual interest of six per cent, under the general provision of that act which directs that all judgments shall carry interest until paid.
The Act of 1803, after providing that judgments shall carry interest, directs that the clerk shall indorse on the execution the day of rendering the judgment, so as to enable the sheriff to calculate and receive interest. After the appeal was entered in the County Court the judgment there ceased to exist. The judgment here is for the amount below with twelve and a half per cent interest. Let judgment be entered for this aggregate sum, upon which the act will give interest.
CAMPBELL and OVERTON, JJ., accorded.
NOTE — This case is cited in Dossett v. Miller, 3 Sn. 74, upon the question of the effect of an appeal, a subject considered in the note to Suggs v. Suggs, ante, 2. — ED.