¶1Opinion delivered May 16, 1873, by
¶2An appeal is not complete until the transcript of the proceedings of the Justice is filed in court. The 4th section of the act of 1810 provides that it shall be effectual in case the party appellant shall file the transcript of the -record of the Justice in the Prothonotary’s office on or before the next term after entering bail.
¶3The appellee has no control whatever over the proceedings relating to-the appeal. The statute gives to the appellant until the first day of the term to enter the appeal. Before that time he may conclude not to enter it at all. His election in regard to this cannot be thwarted, or hastened by any action of the appellee.
¶4The appellee had no more fight to step in and act for the appellant in the matter of bringing up the appeal than any stranger would have. He cannot regulate the proceedings in court to meet the exigencies of the particular case. If he cannot collect his debt by the usual, ordinary and legal process of the law, it is his misfortune. He can no more deprive the defendant of the time which the law gives him, in which to carry up his appeal, than he could of the length of time of notice upon a summons-to appear and answer.
¶5It is argued that the justice is bound to certify all the proceedings to-the prothonotary in case of appeal; and that, therefore, this appeal was regularly entered, because so certified.
¶6The law, as already stated, in express terms speaks of the transcript being filed by the appellant. The two parts of the act are entirely consistent, and are to be construed as requiring the justice to make a full certificate of his proceedings, and the appellant if he desires to re-try the cause, to cause it to be filed.
¶7In this case the defendant has done no act recognizing the appeal as his. But the plaintiff has obtained an award of arbitrators against .him before the time when he was bound to carry up his appeal. The proceedings cannot be sustained.
¶8Rule made absolute — Appeal and award of arbitrators stricken off.