The decision of the majority has 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. The effect of that decision, however, is brushed aside by the majority with the statement the it amounted to no more than an order dropping the case from the docket. Such was not the decision of the court. In that case the appellant had obtained an appeal from the lower court and had superseded the judgment, with bond, but failed to perfect the appeal within the time prescribed by statute, and the Attorney General filed the transcript here with a motion to affirm the judgment. We declined to affirm, on the ground that the court was without jurisdiction to hear and determine the cause, but we dismissed the appeal and ordered the judgment certified down to the circuit court for enforcement. We said nothing about merely striking the transcript from the docket. If that was the proper rule in a criminal case, certainly it is proper in a civil case in order that the appeal may be brought to an end and the judgment of the lower court enforced.
The bases cited by the majority and many other decisions of this court hold that where an appeal is not perfected by the filing of the transcript with the time prescribed by law it becomes the duty of this court to dismiss it. This is the universal rule of all courts. 4 C.J. p. 566. "It results from the doctrines stated that if an appeal is not perfected by doing all that the law commands within the time fixed the court should dismiss it, and so the authorities declare." Elliott on Appellate Procedure, 524.
In testing the jurisdiction of an appellate court to dismiss an appeal on account of failure to perfect it within *Page 126 the time prescribed by law, it is unimportant which of the parties files the transcript. If the transcript is filed with the court and a motion is made to dismiss it, then the jurisdiction of the court to render a decision upon the motion is complete. The views of the majority overlook, I think, the distinction between the jurisdiction of this court to hear and determine a cause and jurisdiction to dismiss an appeal. Upon the filing of the transcript at any time the court has jurisdiction to determine whether or not the appeal has been properly taken and perfected, and, if it decides that the appeal was not properly taken and perfected, it has power to render a judgment dismissing the appeal. In other words, the 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. But the majority say that it is a useless proceeding for the appellee to file a transcript here and procure a dismissal of the appeal, and that it is not essential to the enforcement of the judgment appealed from. I think the majority is incorrect in the assumption that it, is unnecessary to dispose of the appeal before the judgment of the lower court can be enforced. A supersedeas bond suspends the execution of the judgment, and the judgment remains, suspended until the appeal is set aside or the judgment affirmed. Mere lapse of time does not remove the suspension of the judgment, and it requires an order of the court to do that. Therefore it is proper and necessary for this court to make an order dismissing an appeal before the suspension is removed so that the judgment may be enforced. "The mandate of the appellate court remitting the cause to the lower court," says 2 R.C.L. p. 287, "is the official mode of communicating its judgment to the inferior tribunal." Until the lower court is officially notified of the dismissal of an appeal, there is no method for the ascertainment of that fact. If an appellee applies to the clerk of the trial court for an execution *Page 127 after the expiration of the time for perfecting an appeal, what evidence can he furnish to the clerk, other than the mandate of this court, that the appeal has been abandoned or dismissed? Or, if the appellee sues on the bond, what evidence can he furnish that the appeal has not been perfected?
I am of the opinion, therefore, that the majority have not only overturned a long-settled practice which has been observed in all courts, but have established an awkward practice with respect to the remedy of an appellee after an appellant has failed to prosecute an appeal
Mr. Justice SMITH agrees with me in this dissent.