
    Henderson and Nashville Railroad Company vs. Dickerson.
    APPEAL FROM TODD CIRCUIT.
    No appeal is authorized in controversies between the Henderson and Nashville Railroad Company and individuals, unless the appeal be prayed at the time of rendering the judgment, and an appeal bond entered into within the time allowed by the court for that purpose. (Acts of 1850-1,paje 281.)
    On the 19th May, 1854, a jury was impanneled under the 38th section of the act chartering the Henderson and Nashville Railroad Company, to ascertain the amount of damages that would result to Dickerson from running the road through his land. They found a verdict in his favor for $1,636. This verdict was returned to the Todd County Court, on the same day, a motion made by the company for a new trial, which was overruled, and judgment rendered in behalf of appellee upon the finding of the jury. The appellant excepted to the opinion of the court, and spread the evidence on the record by bill of exceptions, and prayed an appeal to the Court ^ Appeals, and executed' bond, dated 19th May, 1854.
    A copy of the record was not filed in this courtuntil after the lapse of more than two terms of this court after granting the appeal
    The charter provides, (see Session Acts of 1850-1,) that the party appealing shall be governed in all respects by the laws regulating appeals in the state where the case or cases may be tried. At the time the judgment was rendered in this case, the law required that appeals should be prayed at the time of rendering the judgment. (1 Statute Law, 128.) And the appellant was required to file a copy of the record with the Clerk of the Court of Appeals, on or before the third day of the second term next ensuing the appeal. (1 Statute Law, 131 to 133.) The last requisition of the statutes not being complied with, it was insisted by appellee that the appeal should be dismissed.
    
      Robert McKee, for appellee—
    Moved the court to dismiss this appeal, upon the ground that the appeal was not legally before this court.
    He argued that the benefit of the appeal prayed, when the judgment was rendered, was lost to the appellant by the failure to file the record in proper time.
    That the provisions of the amended Code of Practice, found on page 288, has no application to this case. The charter was granted in 1851. The judgment appealed from was rendered on the 19th May, 1854. The provisions of the Code respecting appeals did not take effect until the 1st of July, 1854.
    The charter gave the parties, in cases arising under it, a right “to appeal.” The word appeal had a specific legal meaning, and is used in the charter in the sense given to it by our statutes then in force as recognized by the profession and acted upon by the courts. The right given is a right to appeal as contra-distinguished from. a writ of error. Neither the railroad company nor those having controversies with them in regard to right of way could prosecute a writ of error. There was a valid reason for allowing an appeal instead of a writ of error. The writ of error might be prosecuted at anytime within three years, and without bond and security to perform the judgment, and the parties had to be brought into this court by process; whereas, in cases of appeal no process was necessary, and the record must be filed in a specified time, thus tending to bring the contest to a speedy issue. The express right of appeal being given, is a negation of the right to prosecute the writ of error. The proceedings in this case were commenced before the passage of the act of 10th March, 1854, regulating appeal. By that act proceedings in the court which' had been previously designated as writs of errors, are now called appeals; and the distinction between writs of error and appeals is abrogated. This change, however, does not affect the meaning of the word “appeal,” as used in the charter of appellant. It cannot produce any change in the rights of the parties under the laws in force at the time the right of action accrued. It was not then in force. It cannot enlarge the right of appellant, nor iniuriously narrow those of appellee. The act was not intended to be retroactive.
    The appeal should be dismissed.
    
      James Ha.rlan for appellant—
    Contended in opposition to the motion to dismiss the appeal, that under the 38th section of the amended charter of the Henderson and Nashville Railroad Company, approved March 8,1851, (Session Acts, 1850-1, vol. 2, page 296,) the proceedings authorized by that section were taken by the company against R. Dickerson, which resulted in a verdict in favor of Dickerson for $1,636; and the company has brought the case to this court for revision.
    
      The counsel for Dickerson has presented, for the decision of the court, a preliminary question, which that as the railroad company did not execute an appeal bond within the time prescribed by law, its remedy for revising the proceedings of the inferior court is forever gone.
    The language of the section which authorizes an appeal to an appellate tribunal shows it was intended to apply to two states, Tennessee and Kentucky, and it provides: “And the parties shall, either of them, have the right of appeal to the Supreme Court or Court of Appeals. The parties appealing shall be governed, in all respects, by the laws regulating appeals in the state where said case or cases may be tried.”
    “The right of appeal” was intended to give to either party the right of having the question re-examined in a superior court, in any manner a case could be brought to that court. The right to prosecute a writ of error was not intended to be taken away, because by the common law it was regarded as a matter of common right. If the draftsman of the act had intended to confine the privilege to appeals, and to prohibit the emanation of a writ of error, the appropriate language would have been used. But it seems to me the word “appeal” was intended to be understood in its broadest and most comprehensive sense, and not in the restricted and technical sense contended for by the counsel for Dickerson. The act should receive a liberal construction. No reason is perceived why a writ of error was not intended to be embraced.
    [The remainder of the brief is omitted, as the opinion of the case is confined to the question of the right of appeal. — Rep.]
    October 12.
   Judge Simmon delivered

tbe opinion of the Court.

The first question to be considered is the right of the appellant to prosecute this appeal. The decision of this question depends upon the construction of the act, approved March 8th, 1851, “entitled,” an act to amend an act, “entitled, an act to amend and re-enact an act, entitled, an act to incorporate the Henderson and Nashville Railroad Company.” {Yol. 2, Sess. Acts, 1850-1, page 281.)

No appeal ia authorized in controversies be tween the Henderson andNash ville Railroad Company and individuals, unless the appeal be prayed at the time of rendering the judgment, and an ap peal bond entered into within the time allowed by the court for that purpose. (Acts of 1850-1, page %81.)

At the time of the passage of this act, the judgment of an inferior tribunal had to be brought to this court for revision, either by writ of error or by appeal. If by appeal it had to be prayed for at the term at which the judgment was obtained, and an appeal bond executed within the time allowed by the court for that purpose. No appeal of that kind was taken in this case, which was brought here about a year after the judgment was rendered, by the appeal which is substituted by the Code of Practice, for the writ of error.

By the 38th section of the statute above referred to, it is provided that in a case of this kind either of the parties shall have the right of appeal to the Supreme Court or Court of Appeals, and that the party appealing shall be govered, in all respects, by the laws regulating appeals in the state where said case may be tried.

As the right of appeal is given by the statute, this, by a liberal construction, might, if the act contained nothing that indicated a different legislative intention, be understood to mean a right to have the judgment revised by the Court of Appeals, in any mode which the law authorized. But such a construction is forbidden by the statute itself, inasmuch as it prescribes the mode in which this right shall be exercised. The party appealing shall be governed in all respects by the laws regulating appeals. The laws regulating appeals were different from those regulating writs of error; as the party appealing had to be governed by the laws regulating appeals: he could not prosecute a writ of error, because that mode of appealing was governed by laws entirely variant from those regulating appeals.

Important considerations may have induced the legislature to limit the right, so that it should only be exercised by an appeal and not by a writ of error. The former had to be prosecuted immediately, and the parties were apprised that the operation of the judgment was suspended by it. The latter might be prosecuted at any time within three years after material changes in the condition of things had occurred, and even after the judgment had been satisfied, and apparently acquiesced in by all parties. To guard against the inconveniences which might result from such delay, the legislature deemed it proper to restrict the right to have the judgment revised to the proceeding by appeal. As then neither party could have prosecuted a writ of error in this case, for the reversal of the judgment, this appeal, which is allowed in the place of the writ of error, cannot be maintained.

Wherefore the appeal is dismissed for want of jurisdiction.  