
    Hadfield-Penfield Steel Co. v. Oberlander.
    
      Appeal — Justice’s court to common pleas court — Appellee may file transcript, when — Section 10888, General Code — Time for filing transcript and securing judgment — Thirty-day limitation runs, when — Liability of surety on appeal bond— Judgment erroneously entered.
    
    1. Under the provisions of Section 10388, General Code, if the appellant fails to deliver a transcript to the clerk of courts and have the cause there docketed on or before the thirtieth day from the rendition of the judgment appealed from, the appellee may file a transcript, have the cause docketed, and procure judgment thereon at the term of court next after the expiration of such 30 days.
    2. The clause, “at the term of the court next after the expiration of such thirty days," refers to the term of court which convenes next after the term of court in session at the expiration of the 30 days, or next after the recess, if the court is in recess at the expiration of the 30 days.
    3. Where the appellant failed to perfect his appeal as prescribed by Section 10388, General Code, and such 30 day» expired during a term of court, there was no authority to render judgment in favor of the appellee until the following term of court, and suit against the surety on the appeal bond in such case, predicated upon a judgment entered against the appellant prior to said term, cannot be maintained.
    (No. 18138
    Decided March 25, 1924.)
    Error to the Court of Appeals of Crawford county.
    This action was instituted in the court of common pleas of Crawford county by the Hadfield-Penfield Steel Company against Henry N. Oberlander to recover from him as surety on an appeal bond. The case was there heard on an agreed statement of facts, and upon prosecution of error to the Court of Appeals the agreed statement of facts constituted the bill of exceptions. The essential elements thereof are as follows:
    The Hadfield-Penfield Steel Company, on December 17, 1921, in an action before a justice of the peace, recovered a judgment against Michael Bousseff for $154.83 and costs. On December 20,
    1921, Bousseff duly entered into and filed an appeal bond, with H. N. Oberlander as surety, which was duly approved. Bousseff failed to file a transcript within the 30 dáys after the rendition of the judgment, but the Hadfield-Penfield Steel Company, the plaintiff in that action, on January 22, 1922, filed in the office of the clerk of the court of common pleas a duly certified transcript of the docket of the justice of the peace, together with a certified copy of the appeal bond, which was during the January, 1922, term of said court, which began January 2, 1922. The next term of court commenced April 3. Upon motion the cause was docketed on January 23, and oh the same day the Hadfield-Penfield Steel Company filed a motion for judgment in the cause in its favor, and against Bousseff, which motion was sustained, and the court entered judgment as had the justice of the peace. Execution was thereupon issued against Bousseff, and a return was made by the sheriff that no goods or chattels were found whereon to levy. No money was made upon said execution. No action was taken by the parties or by the court with reference to the proceeding during the April, 1922, term. No part of the judgment against Bousseff has been paid. The court of common pleas rendered judgment against Oberlander for the full amount and costs, which judgment, upon prosecution of error to the Court of Appeals, that court reversed.
    
      Mr. Edward J. Myers, for plaintiff in error.
    
      Mr. Charles F. Schaber, for defendant in error.
   Matthias, J.

The single question presented by the record in this case calls for the construction of the provisions of Section 10388, General Code, and particularly that portion thereof which prescribes the procedure to be followed in the event the appellant from a judgment rendered by a justice of the peace fails to deliver the transcript and other papers to the clerk and have the appeal docketed on or before the thirtieth day after the rendition of the judgment appealed from.

This section provides that in such event “the appellee at the term of the court next after the expiration of such thirty days, may file a transcript of the proceedings and judgment, and on his motion the cause shall be docketed. On his application also, the court is required * * * to enter a judgment in his favor similar to that entered by the justice,” etc.

Admittedly, the expiration of such 30 days occurred during the January, 1922, term, and the precise question presented is whether the appellee was entitled to have the cause docketed and a judgment entered in its favor during the January term, or not until the succeeding term. This statute authorizes such action “at the term of the court next after the expiration of such thirty days,” and no authority is conferred for such action at any other time. Had the 30 days expired during a recess of the court of common pleas, prior to the January term, that term would of course be “the term of the court next after the expiration of such thirty days,” but if the 30 days expired during the January term, as is the fact in this case, then the next term of court thereafter would certainly be the term of court subsequent to the January term. Otherwise, if the 30 days expired near the close of the January term, say the day before the term should end, then, although the appellant had been allowed 30 days within which to act, the appellee would have but one day in which to procure such transcript, file the same, have his cause docketed, and procure judgment, and it is a matter of common knowledge that, though the opening date of each term is fixed and certain, the closing date thereof is indefinite and uncertain. Furthermore, that construction would do violence to the usual and ordinary meaning and application of the words employed.

It is contended by counsel for plaintiff in error, however, that the statute should be so construed as to permit action to be taken by the appellee, and by the court upon its motion, and in its behalf, at any time after the expiration of the 30 days and until the close of the next term after the expiration of the 30 days. And there is sound reason in his argument that the right of the appellee ought to begin where the right of the appellant ends — the expiration of the 30 days. But that is an argument addressed to the Legislature and not to the court. If the court were to so construe the statute, it would in effect amend it by striking out the word “at” and inserting the words “not later than,” and the statute would then read “the appellee not later than the term of the court next after the expiration of such thirty days.” Indeed, the legislative history of this section would lead to the conclusion that the intention of the Legislature must have been the contrary. This statute, as originally enacted in 1853 (51 O. L., 201; S. & G., 790), provided:

“If the appellant shall fail to deliver the transcript, and other papers, if any, to the clerk, and have his appeal docketed as aforesaid, on or before the second day of the term of the. said court next after such appeal, the appellee may, at the same term of said court, file a transcript of the proceedings. * * *”

Subsequently the statute was amended, fixing a definite period of 30 days for such action by the appellant, and instead of leaving in the statute the words “at the same term” and adding thereto the words “or the next term,” which easily and clearly would have expressed the meaning which counsel for plaintiff in error now ask the court to ascribe to the present statute, the Legislature deliberately dropped from the statute the words “at the same term,” and substituted therefor the words “at the term of the court next after the expiration of such thirty days.”

The principle of statutory construction to be here invoked is elementary, and has been applied by this court in numerous reported cases. It is the province of the court to construe and interpret statutes only when the language employed is ambiguous and tbe meaning and application thereof uncertain. If the provisions of a statute are plain and unequivocal, there is no occasion for construction or interpretation; nor, under such circumstances, is it the province of the court to consider or attempt to determine what the Legislature should have enacted, nor even what it may have intended to enact.

Judgment affirmed.

Marshall, C. J., Robinson, Jones, Day and Allen, JJ., concur.

Wanamaker, J., not participating.  