
    Luke v. State.
    
      (Nashville,
    
    December Term, 1936.)
    Opinion filed January 30, 1937.
    
      E. A. Lakgeord and A. B. McKay, both of Cookeville, for plaintiff in error.
    W. F. BaRRy, Jr., Assistant Attorney-General, for tbe State.
   Mr. Justice Cook

delivered tbe opinion of tbe Court.

In tbis, a bastardy proceeding, tbe defendant, Ralph Luke, appealed from tbe judgment of tbe trial court dismissing bis appeal from tbe county court. Tbe appeal was dismissed upon tbe conclusion of tbe trial judge that tbe transcript from tbe county court was not filed witbin tbe time prescribed by sections 9030-9032 of the code. See Hayes v. Kelley, 111 Tenn., 294, 296, 76 S. W., 891, and In re Fox’s Estate, 161 Tenn., 432, 33 S. W. (2d), 82.

It appears from tbe record that tbe defendant was arrested December 19, 1935, and carried before a justice of the peace to answer for bastardy. Upon finding that tbe defendant was under tbe age of eighteen years, tbe justice of tbe peace transferred tbe cause to tbe county judge sitting as a juvenile court. There is but one entry showing tbe action of tbe county judge. It was entered January 15, 1936. Tbe entry recites that tbe cause was heard December 31, 1935; Tbe record also shows that defendant’s oath in lieu of an appeal bond was filed January 2, 1936, but there is no showing on tbe face of tbe record that an appeal bad been granted at that time.

The entry of tbe judgment in tbe county court on January 15, 1936-, contains the recital that the cause was heard December 31, 1935, when the court was of opinion that defendant was the father of a bastard child about to become a county charge. This recital was followed by entry of a judgment against defendant for $360, payable by installments, the first to begin January 15, 1936. The entry on January 15, 1936, shows also that the appeal was then prayed and granted. There is no other order or decree showing a prayer for appeal and that the appeal prayed was granted. The next term of the criminal court following January 15,' 1986, was fixed by law for January 21.

The question raised by defendant’s appeal is: (1) Whether the appeal relates to December 31, 1935, when the cause was heard, or to January 15, 1936, when final judgment of the county court was entered and the appeal was prayed and granted. (2) Whether more than five days intervened between the date of the appeal and the first day of the next term of the criminal court.

No appeal from the judgment of the county court could be perfected until the appeal was prayed as well as granted. Teasdale & Co. v. Manchester Produce Co., 104 Tenn., 267, 56 S. W., 853. Section 9030 of the Code fixes the time from which the appeal runs us the date of the appeal. It provides:

. If the appeal is to the next term of the circuit court and more than five days intervene between the date óf appeal and the first day of the term, the appeal -is to the next term, but if less time than five days intervene, the appeal is to the next succeeding term.

Unless more than five days intervened between the •date of the appeal from the county court and the first ,day of the next term of the criminal court, the appeal would be to the next succeeding term of the criminal court.

Excluding January 15, the day the appeal was granted, and including January 21, the first day of the next term of the criminal court (see section 11, Code), there were only five days intervening between the appeal and the convening of the criminal court. By express provision of the statute, unless more than five days intervened between the date of the appeal from the county court and the meeting of the criminal court, the appeal would run to the next succeeding term of the criminal court.

The appeal was perfected by filing the transcript from the county court of February 18, 1936, which was before the next succeeding term fixed by statute at the third Monday in May. It appears that the appeal was perfected within the time prescribed by section 9030 of the Oode.

Reversed and remanded.  