Turner vs. Tapscott, Adm'r.

Yell v. Outlaw, 14 Ark., 414, the court decided that after an appeal had been taken and submitted, and afterwards dismissed by the appellant, he might have a writ of error in the

same case.

We think it difficult to find a distinction in principle, or a 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 cause is brought here by appeal or writ of error, and the same consequences follow the affirmation or reversal of the judgment. Pope v. Latham, 1 Ark., 66. In the case just referred to, a distinction was made between the cases where the judgment was not superseded and those where it was; and the court say: "If the successful party in the court below is not hindered by the appeal from having execution, no good reason is perceived why the appellant may not dismiss his appeal at any time before the final adjudication of it, with like effect as if he had brought the cause here for revision, by writ of error without supersedeas."

In addition to the reason there given for the distinction, we will remark that the court below has no power over the supersedeas, whether the appeal has reached here or not, and that it is subject to the jurisdiction and control of this court alone. The view we have here indicated is in accordance with the settled practice in 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 been dismissed. Yeaten v. Lenox, 8 Pet., 123; United States v. Curry, 6 How., 106; Virginia v. West, 19 How., 182; Costia v. United States, 3 Wall., 46; United States v. Gomez, id., 752.

But whilst we hold that the appellant, notwithstanding he

29 320 54 553 29 320 072 477

Rice and wife vs. Reed.

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 therefore refuse to dismiss that now pending, we think the better practice, where the appeal which does not have the effect to supersede the judgment or decree is for any cause not prosecuted, to be for the appellant to make application to the court to have the case docketed, and then ask to have the same dismissed before applying for a second appeal. The motion to dismiss the appeal is overruled.

RICE and wife vs. REED.

WRIT OF ERROR: Pending appeal with supersedeas.

When an appeal has been granted to this court, with supersedeas, a writ of error will not lie until the appeal has been dismissed.

ERROR to Phillips Circuit Court.

Motion by defendant in error to dismiss.

U. M. Rose, for plaintiff in error.

English & Ford, contra.

WILLIAMS, Sp. J. The plaintiff sued out of this court a writ of error in this case.

Defendant has pleaded, in abatement of the writ, that plaintiff, during the same term in the court below, at which the judgment was rendered, had prayed an appeal to this court, which the court below granted; and that plaintiff had filed in said court a supersedeas bond, whereby the execution of the judgment was stayed until the determination of said appeal; and while said appeal was pending and undetermined, and the execution of the judgment stayed and superseded as aforesaid, sued out the writ of error, etc. To this plea, plaintiff in error demurred.

Rice and wife vs. Reed.

It has been well settled in this court that where an appeal has been taken in the court below, and dismissed by this court without a hearing upon the merits, that a writ of error would lie, and under the said practice an appeal might be granted by the clerk of this court.

We decide at this term that where such an appeal is taken, and not perfected by filing the transcript in this court within the time prescribed by law (ninety days) after the same is taken, that an appeal may be granted by the clerk of this court, where there was no supersedeas bond given.

In the case of Clay, Adm'r, v. Notrebe's Ex'rs, 6 Eng., 631, Clay appealed to this court, and the affidavit and supersedeas bond were filed in the court below, and the appeal was then granted and the judgment superseded. He afterwards took out a writ of error to the same judgment from this court, and brought the case here by writ of error. Notrebe's executors pleaded, as has been done here, in abatement of the writ, the pending of the appeal, setting up the facts of its having been granted, and the supersedeas, etc.

Judge Scott, delivering the opinion of the court, put great stress upon what he deemed to be the fact, that the appeal was not pending here, an issue that was really immaterial; and under what we consider a misapprehension of the law, it was ruled that the writ of error in that case should be sustained.

Afterward, in the case of Yell, as Gov., v. Outlaw, 14 Ark., 415, Chief Justice WATKINS, in delivering the opinion of this court, says: "In Clay v. Notrebe, 6 Eng., 631, this court went so far as to refuse to abate a writ of error upon a plea that an appeal had been taken in the court below with stay of execu tion in the same cause. Though the decision then turned upon the issue made by the pleading, whether the appeal had been in fact pending in this court, the judge delivering this opinion is constrained to think it was an immaterial issue, beVOL. XXIX.-21

Rice and wife vs. Reed.

cause where there has been a supersedeas, the option of the appellant to abandon his appeal and bring error is inconsistent with the right of the appellee, under the statute, to have an affirmance of the judgment, unless the appeal is diligently prosecuted; besides, upon appeals taken in the circuit court, the stay of execution does not depend upon the opinion of any court or judge who, in his discretion, may think there is probable ground of error, but the suspension is demandable at the pleasure of the appellant upon the sole consideration of his ability to furnish satisfactory security."

This statement professes to be nothing but the individual opinion of the judge delivering the opinion, and is dicta in that case. But if the statute, under which those decisions. were made, caused hesitancy in giving assent on the part of the judge of the experience of the chief justice, who delivered the opinion in Yell v. Outlaw, how much more should we hesitate when we administer the law not only under a rule which authorizes the same steps to affirm on the part of the appellee, alluded to by the chief justice in the above quotations, but we have also a statute now which gives to the appellee the right to file the transcript with like effect as though the same were filed by appellant (sec. 863, Civil Code), and the limitation of ninety days provided by sec. 862, within which appellant is required to file the transcript, does not apply to appellee. It would not comport very well with judicial regularity to have the same cause pending here on appeal, or on application of appellee for its affirmance, or final hearing on appeal and for judgment on the bond, and also on writ of error sued out at the instance and in behalf of another party. We hold that whenever a supersedeas bond has been filed, and the judgment of the court has been in fact superseded, no writ of error lies, nor can an appeal be granted in this court until the appeal is dismissed, thereby disposing of the right of ap

Hanks vs. Harris.

pellee to invoke the aid of this court, and leaving him to pursue his legal remedies, such as they may be, against the security in the appeal bond. In so far as the case of Clay, Adm'r, v. Notrebe's Ex'rs, 6 Eng., 637, conflicts.with the views herein expressed, if there be a conflict, the same is overruled.

Finding the plea in abatement sufficient in law, the demurrer is overruled, plaintiff in error can reply and put the facts in issue, and on failure to do so, the writ will be dismissed.

Hon. E. H. ENGLISH, C. J., did not sit in this case.

HANKS VS. HARRIS.

1. ASSIGNMENT: Of decree, effect of.

Where one joint owner of a decree executes an instrument transferring to a third person a part of his interest therein, the legal title and right to control the decree is not thereby changed, nor does the assignee become a partner in the decree.

2. PAYMENT: By assignment of decree.

Where such an assignment is intended as a mode of payment for property purchased by the assignor, its legal effect is to create a security, and the assignor's liability is not thereby extinguished.

3. GUARANTY: In the assignment of a decree.

By guarantying payment to the assignee of the sum transferred, the assignor in legal effect warranted that he had a valid decree which, with good faith and reasonable diligence on the part of the assignee, would be effectual to the payment of the assignor's indebtedness. 4. PLEADING: AMENDMENT: When presumed.

When the covenant sued on is set out in the complaint, this court will not consider a defect in the assignment of breaches where no objection was made to the introduction of testimony in the court below on that ground, but if the proof shows a breach, will regard the complaint as having been amended to correspond with it.