Higgs vs. Shehee.-Opinion of Court.

cumstantial, from which the jury could have inferred any fact sufficient to sustain the cause of action, or any part of it. The evidence did not warrant any inference or deduction beyond the fact proved.

The case of Gibson vs. Hunter, 2 Blackstone Rep., 187, is relied on by the court as authority in this case. But, with due deference, I do not think the authority applicable. It is unnecessary to refer particularly to the facts in that case, as reported; it is sufficient to say that the evidence was purely circumstantial. And in answer to the question propounded by the House of Lords, whether upon that evidence any judgment could be rendered by the court upon demurrer, Chief Justice Eyre said, "That "the examination of the witnesses in the case had been con"ducted so loosely, or the demurrer had been framed so "negligently, that there was no manner of certainty in the state of facts, upon which any judgment could be "founded," and a venire de novo was awarded upon the ground that, by reason of the party demurring, not admitting upon the record the facts which this circumstantial evidence conduced to prove, the issue between the parties had not in fact been tried. But it is further said in this authority, that the same rule of law requiring a party to join in demurrer, where the evidence offered is written, applies to parol evidence, when it is certain, and admits of no variance.

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Wherein consists the analogy between the authority and the case before us? Is the evidence here "loose, inde66 terminate and circumstantial ?” Or is it not well defined, admitting of no variation. or inference? In one sense the evidence in this case is uncertain, and so may be said of all evidence, however definite, which fails in establishing the point in issue. And so all relevant evidence offered by a plaintiff conduces to prove the issue.

Higgs vs. Shehee.-Opinion of Court.

But this is not the sense in which the term is used in the authorities; otherwise, no one could demur to evidence unless he admitted the facts put in issue, which admission would be a sufficient answer to and overrule the de

murrer.

If, as contended, the plaintiff in the court below was not compelled to join in demurrer, under the proofs, I ask what fact was the defendant bound to admit under his demurrer beyond the sale and delivery of the articles? If their value as charged, it would in effect have been a confession of judgment for the entire demand; and the effect of a demurrer to evidence would, therefore, be to defeat its very object and purpose.

One of two propositions we are bound to admit;—either that the evidence in this case conduces to prove no fact beyond a sale and delivery of the goods, in which event the judgment of the court below was correct, or that the evidence conduces to prove the entire demand of the plaintiff, which no one, I apprehend, would be willing to concede.

Giving to this evidence the utmost latitude, I do not find that the facts as proven, unaided by other testimony, establish anything material to the issue, and that, as it admits of no inference or interpretation in favor of the plaintiff, I do not see the necessity of calling for the investigation of a jury, which must result in a verdict no wise different from the judgment of the court.

Tallahassee R. R. Co. vs. Hayward & Walker.-Opinion of Court.

THE TALLAHASSEE RAILROAD COMPANY, APPELLANTS, VS. HAYWARD AND WALKER, APPELLEES.

The act of February 10th, 1832, which requires an appellant to file a true copy of the proceedings in a cause in the Circuit Court with the clerk of the Supreme Court on or before the first day of the next succeeding term thereof, is imperative in its terms, and makes it the duty of the Supreme Court to dismiss the appeal upon an application based upon the certificate of the clerk of the court below that an appeal has been obtained and a bond given.

Motion to dismiss appeal from judgment of the Circuit Court of the County of Leon, on the ground that the transcript of the record of the proceedings of the court below had not been filed with the clerk of this court as required by law.

Archer, for motion, cited Thomp. Dig. 448, and contended that the court had no discretion, and that the appeal should be dismissed.

Baltzell, for appellants, resisted the motion.

SEMMES, Justice, delivered the opinion of the Court.

The appellees move the court to enter this cause on the docket, and dismiss the appeal for want of prosecution. Though the question presented is one purely of practice arising under our statute, yet the court deems it of sufficient importance to accede to the request made by counsel, and deliver its opinion in writing.

In aid of their motion, the appellees exhibit to the court a certificate from the clerk of the court below that an appeal had been taken, and bond given as required by law.

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This application is predicated on the following statute: It shall be the duty of the party appellant to demand "from the clerk a true copy of all the proceedings in such cause in the circuit court, and file said copy with the

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Tallahassee R. R. Co. vs. Hayward & Walker.-Opinion of Court.

"Clerk of the Supreme Court on or before the first day of "the next succeeding term thereof," &c. A subsequent part of this statute also provides that "if the party appellant fail to file the proceedings as aforesaid, it shall "be the duty of the said court, unless good cause be shown, to dismiss said appeal, on the adverse party producing a certificate from the clerk of the court below that an appeal has been obtained, and a bond given as "aforesaid." Thomp. Dig. 448, § 1.

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By reference to this certificate, it appears that the appeal in this cause was taken on the 10th of November, 1851, during vacation, from a judgment of the Circuit Court of Leon County.

It is conceded in argument that no notice of the appeal has been given to the adverse party, and it is not pretended that a copy of the record was filed with the clerk of this court on the first day of the term, as required by the statute.

The construction which the court has given this statute is, that it is the imperative duty of the court to dismiss an appeal upon an application based on a production of the certificate, unless the party in default shows some good cause for not having complied with the provisions of the statute.

It is a penalty which an appellant subjects himself to on failing to prosecute his cause a penalty imposed by law, and over which this court has no discretion. This con

struction, which the court has been constrained to give, is the only one which, in its opinion, the words of the statute are susceptible of, and it seems too manifest to admit of discussion.

No reason is assigned by counsel for appellants, why the record was not filed in this court at the commencement of the term, except the fact informally presented, that at the

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Tallahassee R. R. Co. vs. Hayward & Walker.-Opinion of Court.

time, or shortly after the appeal was taken, the President of the Railroad Company was temporarily absent from Leon County. This statement unsupported by affidavit, being objected to by the adverse party, cannot influence the judgment of the court. But conceding to it all the weight it could be entitled to if formally presented, it constitutes no excuse for the default in this case.

It is insisted by counsel for appellants that the court should regard this application as purely technical in its character, and calculated to defeat the ends of justice; and that the adverse party cannot be prejudiced by denying their motion, and docketing the case for trial at this term. If reference is had solely to the merits of the cause, the objection may be considered as technical, and so may be considered every condition, imposed by law, to the exercise of the right of appeal, but it is none the less our duty to enforce these terms and conditions, when our judgment is invoked by the adverse party; and, in the opinion of the court, the ends of justice can only be attained by administering the law as we find it. A departure from this principle would be to assume a discretion where none is given, and substitute our own terms to the right of appeal, for the fixed and well defined rules prescribed by the Legislature.

Some stress has been given to the fact that the motion to file the record and go into trial, is made simultaneous Iwith the motion to dismiss. The court is at a loss to know how this cures the default, or places the appellants in any better position than if they had made no motion; for, having incurred the penalty, it is at best but an appeal to the opposite counsel, and not an argument for the consideration of the court.

If we relax the rule in this case without cause, upon what principle could we refuse the application to file the record