Appellee secured a judgment against appellant in the trial court. On the overruling of his motion for a new trial, he prayed and was granted an appeal to this court, and filed a supersedeas bond. He failed to perfect his appeal to this court within six months, and after six months appellee filed a transcript of the record and moved to affirm the judgment under Rule VII of this court. This relief has been granted by the majority and, in doing so, they have expressly *Page 675 overruled Sample v. Manning, 168 Ark. 122,269 S.W. 55. From this action, I respectfully dissent.
Appellee's only purpose in taking this procedure is to get a judgment of this court against appellant and the surety on his supersedeas bond, so that execution out of this court may go against both. This, in my judgment, cannot be done, as this court has no jurisdiction, because the appeal was not taken in six months. Section 2741, Pope's Digest, provides: "It shall be the duty of the appellant to file in the clerk's office of the Supreme Court, within ninety days after the appeal or writ of error is granted, an authenticated copy of the record, otherwise his appeal or writ of error shall be dismissed; but the Supreme Court may for cause shown extend the time for filing such copy."
Section 2742 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."
Section 2746 provides: "An appeal or writ of error shall not be granted, except within six months next after the rendition of the judgment, order or decree sought to be reviewed, unless the party applying therefor was an infant, or of unsound mind at the time of its rendition, in which cases an appeal or writ of error may be granted to such parties, or their legal representatives, within six months after the removal of their disabilities or both."
My conception of these statutes is this: If appellant fails to perfect his appeal in 90 days, appellee may do so at any time within six months and move as provided in Rule VII. But if the appeal is not perfected by either party within the limitation provided in 2746, then this court is without jurisdiction to grant any relief, or to take any affirmative action, and Rule VII does not undertake to provide otherwise, or, if it does, it is invalid in so far as it may attempt to abrogate said section.
It is well settled that the statutory provision which limits the time in which an appeal may be taken is jurisdictional, and that if not taken in time, there is no jurisdiction, except for fraud. Spratlin v. Haller, 69 Ark. 281, *Page 676 62 S.W. 904; Sample v. Manning, 168 Ark. 122,269 S.W. 55: Field v. Waters, 148 Ark. 325, 229 S.W. 735: Bank of El Paso v. Neal, 181 Ark. 788, 27 S.W.2d 1024; Camden Gas Corporation v. Camden, 183 Ark. 583,37 S.W.2d 74.
This case is in point in every detail with that of the late Judge HART in Sample v. Manning, supra, except in that case the motion was to dismiss the appeal. There, the motion to dismiss was denied and the appeal was ordered stricken from the docket. This decision was by a divided court, but even the late Chief Justice McCULLOCH, who wrote the dissent, concurred in by one of the present majority, did not suggest that this court acquired jurisdiction to grant any affirmative relief, such as affirming the judgment, as the majority have here done, but only that this "Court always has the power to decide a question relating to its own jurisdiction, and, for the purpose of determining whether or not it has jurisdiction, it may decide whether or not an appeal has been properly taken and dismiss an appeal which has not been properly taken and perfected."
The appellee is not without a remedy. It was said in that case: "To sum up: in cases where the time for appeal has expired, the party recovering judgment in the court below has the right to have execution against the losing party. If a supersedeas bond has been given, he may sue on it. He could acquire no greater rights if we should hold the better practice to be to allow him to docket the appeal in this court for the very purpose of dismissing it.
"Therefore we conclude that the better practice would have been for the clerk to have refused to have docketed the appeal in this case, and, in conformity with this view, the cause will be ordered stricken from the docket of this court."
This decision has been the law in this state since 1925 and I see no good purpose to be served in now changing the practice. The evil is that it is further evidence of the instability of judicial decisions.
Mr. Justice BAKER and Mr. Justice DONHAM concur in this dissent. *Page 677