WADE et al. v. LEACH

WADE et al. v. LEACH. (Circuit Court of Appeals, Fifth Circuit. October 11, 1924.) No. 4255. Appeal and error <@=>607(2)—Filing of praecipe for transcript, with proof o,f service, essential to appeal. Failure of an appellant to file praecipe with the clerk, with proof or acknowledgment of service, indicating the parts of. the record, to be incorporated into the transcript, as required by equity rule 75, is ground for dismissal of appeal. Appeal from the District Court of the United States for the Southern District of Georgia; Wm. H. Barrett, Judge. Suit in equity by L. S. Leach, trustee in bankruptcy of George H. Wade, Jr., against Anna Wade and George H. Wade, Jr. Decree for complainant, and defendants appeal. On motion to dismiss appeal. Granted. John R. Cooper and W. 0. Cooper, Jr., both of Macon, Ga., for appellants. H. McWhorter, of Cochran, Ga., for appellee. Before WALKER, BRYAN and KING, Circuit Judges. [MAJORITY — WALKER, Circuit Judge.] WALKER, Circuit Judge. Motion is made to dismiss the appeal in this case on the grounds that there was a failure to comply with the requirements of equity rule 75 (226 U. S. 671, 33 S. Ct. xl) as to filing with the clerk of the court of proof or acknowledgment of service on the appellee or his solicitor of a copy of the prmeipe, indicating the portions of the record to be incorporated into the transcript on this appeal, and as to the statement of the evidence in condensed form. It is disclosed that there was no compliance with those requirements, and that as a result of the failure to comply with the first-mentioned requirement material parts of the record in the. case were omitted from the transcript. We think that the motion is well taken. The appeal is dismissed.