
    Madison, Indianapolis & Peru Railroad vs. Briscoe and Levi.
    Case 17_
    Motion.
    APPEAL FROM LOUISVILLE CHANCERY COURT.
    The Revised Statutes does not repeal, but expressly continues the laws in force regulating proceedings in the courtof appeals, nor does the Civil Code repeal the provisions of the act of 1798, allowing damages on dismissal of appeals to the court of appeals when the judgment or decree is for money.
    [The facts of the case are set out in the opinion of the court.—Rep ]
    
      Atwood, for appellant—
    This is a motion to correct the mandate of this court, giving damages of ten per cent, on the dismissal of an appeal from a decree of the Louisville Chancery Court; and it was insisted that all laws giving damages in such cases were repealed by 748 sec. of Code of Practice. Provision is made for damages on affirmance of the judgments, &c., but none for cases of dismissing appeals.
    
      Geo. A. I. Caldwell, for appellees—
    The law of 798, giving damages on the dismissal of appeals, is not repealed by the Revised Statutes or Code of Practice, and therefore the judgment for damages is right.
    The 748t/i sec. of the Code of Practice does not repeal the former law. It provides that laws coming within the purview of its provisions shall be repealed. The word purview is defined by the court in Payne vs. Conner, Sj-c., 3 Bibb, 181; according to that definition, an act repealing all acts coming within its purview, repeals all acts “ in relation to cases which are provided for by the repealing act.” The ground assumed to sustain this motion, is that the Code makes no provision for damages on dismissing appeals, as there is where there is an affirmance. The Code being silent, therefore the law is left unaffected by the Code. The framers of the Code evidently understood the term purview as we do, and therfore say in the repealing sections, (748 and 875,) “ all statutes * and laws heretofore in force in this State, in any ‘ eases provided for by this Code, or inconsistent with ‘ its provisions, are hereby repealed and abrogated.” We contend, therefore, that the damages are properly given by this court. If there was no such penalty on dismissals, the appeal might be repeated from time to time until barred by limitation.
    Dec. 24, 1857.
   Judge Stites

delivered the opinion of the court.

On motion to set aside order allowing damages on dismissal of appeal.

The only question raised on this motion is whether, upon a dismissal of an appeal from a judgment order or decree, for the payment of money, the collection of which has been superseeded, the appellee is entitled to tenper cent, damages.

The act of 1798, (1 Stat. Law, 131,) is the only law which authorizes such judgment, and if that has been repealed damages upon dismissals are not allowable; but if still in force no doubt exists as to the right of appellee to his damages.

It is conceded that the Revised Statutes expressly recognize and continue in force all laws then in force regulating proceedings in the court of appeals; but it is contended that the several provisions of the Civil Code, applicable to this court, and which apply to, provide for, and regulate almost every character of proceeding from the original appeal to the final mandate, except in cases of dismissal, have virtually repealed the act in question. Or, in other words, that inasmuch as the legislature has thus regulated all proceedings in this court, and provided expressly for damages upon affirmances, and has failed to provide for damages on dismissals, that such failure should be deemed a constructive repeal of the law authorizing damages in such cases. And furthermore, that sllcli law, if not thus repealed by construction, is ob- .... . „ , _ viousiy within the purview of the Civil Code, and stanc^s repealed by that section which expressly repeals all laws coming within its purview. (Civil Code, sec. 748.)

The Rev. Stat. does not repeal, but expressly continues the laws in force regulating pro ceedings in the court of appeals, nor does the Civil Code repeal the provisions of the act of 1798, allowing damages on dismissal of appeals to the court of appeals when the judgment or decree is for money.

This view, though plausible, altogether overlooks another section of the Code, which defines with precision the repealing effect of the section last mentioned, and limits it to such laws as are inconsistent with the provisions of the Code, or are applicable to cases provided for by it' (Civil Code, sec. 875.) And which disposes of the question before us

The act of 1798, supra, is neither inconsistent with any provision, nor applicable to any case mentioned or provided for thereby. It relates to a class of cases not provided for or mentioned, as has been conceded in the argument, and must therefore be regarded as expressly excepted from the operation of section 748, and unaffected by any rule of construction implying a repeal.

In reply to the suggestion that the judgment appealed from is in rem, and not in personam, we deem it sufficient to say wre do not so regard it.

The original proceeding was by attachment and in rem, but, as appears from the judgment, the appellants were before the court, by actual service and appearance, and they are ordered and required to pay the sum adjudged appellee. Prom that judgment or order they appealed, and sup erseded its collection by the execution of a bond.

The judgment, in our opinion, is in personam and not within that class of cases directing the sale of property in which damages are refused.

The motion to set aside the order awarding damages is overruled  