In this, a civil case, the appeal has been taken by the appellants more than six months and a supersedeas bond was filed by appellant in the circuit court and the appellant has not filed in the office of the clerk of this court an authenticated copy of the record, and the appellee has filed with the clerk of this court a certified transcript of the judgment appealed from, with the order of the court below granting the appeal, and the supersedeas bond, and has moved to affirm the judgment of the court below and to give judgment against the sureties one the supersedeas bond.
Section 2777 of Pope's Digest provides:
"The Supreme Court may make rules for the convenient dispatch of business, the preservation of order, the argument of cases, or motions, the manner and time of presenting motions or petitions for rehearing, the time of issuing its mandates and decisions and modes of enforcing its mandates and orders, and may change the same. Provided, no mandate shall issue or decision become final until after fifteen judicial days from the time the decision was rendered, unless the court, for good cause shown, shall otherwise direct. If a petition *Page 671 for rehearing be filed before the time for the decision to become final, as above specified, all proceedings upon the decision and mandate therein shall be suspended until petition for rehearing shall be acted upon by the court. Provided, the court in term time, or a judge thereof in vacation, may enlarge the time for filing petitions for rehearing, not exceeding thirty additional days, and order that all proceedings upon the decision be stayed during such time. But the party applying for an extension or enlargement of the time for filing a petition for rehearing must do so within fifteen judicial days from the time the decision was rendered and show good cause for such enlargement and reasonable notice of the application must first be given the opposite party or his attorney of record. Any order for the extension of time made by a judge of the court shall be subject to the order of the court."
The above statute is an amendment of 1230 of Kirby's Digest which is taken from the Civil Code. Under the authority of the law this court adopted Rule VII, which reads as follows:
"In all civil cases when the appeal has been taken more than ninety days and a supersedeas bond filed, and the appellant has not filed in the office of the clerk an authenticated copy of the record, the appellee, may, at any time, file in this court a certified transcript of the judgment, order or decree appealed from, the order granting the appeal and the supersedeas bond, with his motion to dismiss the appeal or affirm the judgment; and the appeal shall be dismissed or the judgment affirmed by the court at the cost of the appellant, unless the appellant pays the costs incurred on his motion and offers in good faith to prosecute his appeal and tenders an authenticated copy of the record, or shows good cause for a failure to tender the record entitling him to an extension of time for filing it under 2135 of Crawford Moses' Digest; provided a notice of ten days of such intended motion be given the appellant or his attorney of record; and provided further, that the judgment will *Page 672 not be affirmed when the appeal has been voluntarily dismissed before the submission of said motion.
"Where an appeal has been improperly granted, or the appellant's right to further prosecute the same has ceased, the appellee may immediately move the dismissal of such appeal and the court shall determine the merits of such motion as expeditiously as possible."
In the case of Bush, Receiver v. Barksdale, 122 Ark. 262,183 S.W. 171, L.R.A. 1917A, 111, this court said: "If the appeal be not prosecuted, the appellee has the right under the statute (Kirby's Digest, 1195), to file a transcript of the record, and ask for an affirmance, which operates as a final adjudication of the rights of the parties in the subject-matter of the litigation."
In the case of Chaffin v. McFadden, 44 Ark. 523, Chief Justice COCKRILL, speaking for the court, said: "The statute which regulates the practice in this particular (Mansf. Rev. St., 1306), does not limit the right of filing such motion or having it acted upon to any particular time or term, but contemplates an affirmance of the superseded judgment, where the court is satisfied that the appeal is taken for delay, at the earliest practicable moment. The court will not lend its aid to parties prosecuting frivolous appeals by interposing the barrier of one or more terms for their protection. To do this, would be to aid the object of the appeal by giving the desired delay."
Section 2742 of Pope's Digest provides: "The appellee may file an authenticated copy of the record in the clerk's office of the Supreme Court with the same effect as if filed by the appellant."
It will be observed that this section does not limit the light of filing the motion or having it acted upon to any particular time or term. It is contended that the case of Sample v. Manning, 168 Ark. 122, 269 S.W. 55, is controlling. That case does not discuss or mention Rule VII. It does hold, however, that the court had no jurisdiction, not even jurisdiction to dismiss the appeal. In that case Chief Justice McCULLOUCH, in a dissenting opinion, said: "The decision of the majority has *Page 673 overturned a rule of practice which has been adhered to in this court for a great many years, and which found expression in the opinion of the court in Gross v. State, 89 Ark. 482,117 S.W. 531."
The case of Gross v. State, supra, was a criminal case and the court said: "Rule VII of this court, concerning motions to affirm judgments on account of failure of appellants to prosecute appeals, applies only to civil cases, and cannot be invoked in a criminal case."
In the case of The North State Fire Ins. Co. v. Dillard,86 Ark. 561, 111. S.W. 1003, Rule VII was approved by this court and was at that time amended so as to permit the first appeal to be prosecuted if the costs incident to it and the motion, are paid by appellant, and if he, in good faith, then offers to prosecute his appeal and filed his transcript pursuant to the statute, and further amended the rule so that an affirmance cannot be taken when a second appeal has been granted before the motion is submitted.
Section 4 of Art. 7 of the Constitution of 1874 defines the power and jurisdiction of this court, and this provision was in effect at the time Rule VII was adopted. It has not been changed in any way. The statutes are substantially the same. Rule VII with other rules was adopted by this court March 7, 1885, about fifty-two years ago. The court at that time was composed of S. R. COCKRILL, Chief Justice, JOHN R. EAKIN, and WILLIAM W. SMITH, Associate Justices. These men were great lawyers and certainly would not have adopted a rule that they did not think the law authorized. The rules, including Rule VII, were printed in volume 43 of the Arkansas Reports. Some mistake appeared in the printing of the rules, and the mistakes were corrected and the rules were again printed in volume 44 of the Arkansas Reports.
When this court held that Rule VII applied to civil cases only, Gross v. State, 89 Ark. 482, 117 S.W. 531, the court was composed of five judges, JOSEPH M. HILL, Chief Justice, B. B. BATTLE, C. D. WOOD, J. C. HART and E. A. MCCULLOCH, Associate Justices. So far as the record shows, no objection to rule VII was ever made, but it *Page 674 has been in existence for 52 years and that part of it involved here has never been changed. It is true that the statute limits the time in which an appeal may be prosecuted by the appellant, but there is no statute limiting the time in which the appellee may file the record and move for an affirmance.
In adopting Rule VII and approving it by this court for the last 52 years, the court necessarily construed the Constitution with reference to the court's power and the statutes also. A cardinal rule in dealing with constitutional provisions is that they should receive a consistent and uniform interpretation so that they shall not be taken to mean one thing at one time, and a different thing at another time. Certainly, when a constitutional provision or a statute has been construed, and that construction consistently followed for many years, such construction should not be changed.
The power of the court to adopt Rule VII has been recognized for many years. Without Rule VII or some similar rule, a judgment might be had against a party and no errors committed in the trial, and appeal prosecuted for the purpose of delay only, and thereby prevent the appellee from enforcing the judgment for six months.
The case of Sample v. Manning, 168 Ark. 122, 269 S.W. 55, in so far as it is in conflict with this opinion is overruled.
The petition of the appellee is granted, the judgment is affirmed, and judgment against the sureties on, the supersedeas bond.
McHANEY, BAKER and DONHAM, JJ., dissent.