Francis West and others, appellants v. Walter Brashear

Francis West and others, appellants v. Walter Brashear. A defendant in an appeal, using the copy of the record received frQm.the circuit court lodged by the appellant, cannot have the appeal docketed and dismissed, under-the 3Qth rule of the court; on the ground that the appellant has failed to comply with the 37th rule, which requires a bond ,to be given to the clerk of the Supreme Court, . before the case is docketed. He must, ,tS"'sustain a "motion to dismiss the cause, produce the certificate of the circuit court- stating the cause; and certifying that such an appeal has been duly sued out and allowed. APPEAL from the circuit court for the district of Kentucky. ■ On a motion of Mr. Crittenden, counsel for the defendant, to dismiss the appeal. [MAJORITY — Mr. Chief Justice T anev] Mr. Chief Justice T anev delivered the opinion of the" Court. In this case an appeal has been1 taken from the decree of the circuit court for the eighth circuit, and a copy of the record . in due form has been lodged by the appellants with the clerk. But the case has not'been docketed, because the appellants have not filed'the bond to secure the fees to the clerk of this'Court, prescribed by the rule No. -37, adopted at January term, 1831.- Upon the record brought here as abovementioned, the appellee has moved the Court for leave to docket and- dismiss the case, under the 30th rule. " We think this cannot be done. The appellee, upon producing 'the "certificate from the clerk of the circuit court, as required "by the 3Gth’ rule of -this Court, stating the cauáe and certifying that such an appeal had been duly sued out and allowed, will be entitled to have the case docketed andAismissed. But this cannot be done ,on the record- brought here by the appellants. The motion is therefore overruled.