Weed v. Lyon

The statute regulating appeals from this Court, says, “ Such appeal shall be claimed and entered within ninety days from the time of the making of such decree, or final order, and the appellant shall, within the said ninety days, file a bond to the appellee, with sufficient sureties to be approved by the Chancellor,” &c. R. S. 379, ^ 122. The next section is in these words: “If the appeal shall not be entered and such bond be filed within the time above limited, no appeal shall be allowed.”

*78It was conceded on the argument, that the Court has no power to enlarge the time given by the statute for appealing ; but it was insisted it has power to permit a re-entry of the decree dismissing the bill, and, in that way, to restore to the complainants what they have lost. The Court may, undoubtedly, allow a decree to be re-entered, on a proper case being made out for that purpose; but it cannot for the purpose of evading or getting round the statute, which is positive, that the appeal shall he claimed and entered, and the bond filed, within ninety days from the making of the decree. The exercise of such a power would, in effect, be claiming for the Court a power to do indirectly what it cannot do directly; nay, more, — a power to resuscitate a lost right, or to reinstate the complainants in what they have lost by their omission to comply with the statute, and not through any fraud or improper conduct of the defendants.

The right of appeal from this Court to the Supreme Court, is a statutory right,'given to either party who may be dissatisfied with the decision, on certain conditions, which can no more be dispensed with by a court of equity, than by a court of law, where the right has been lost by an omission to comply with the statute. It is the complainants’ misfortune that the appeal bond was not filed within the ninety days; but it is not in the power of the Court, under the circumstances of the case, to give relief. See 2 Paige R. 413; 7 Id. 245.

Motion denied.