FRANKLIN v. REINER

FRANKLIN v. REINER. Transcripts used on appeal to this Court must show that an undertaking has been filed in due time; and that a notice of the appeal has been duly served upon the other side. Appeal from the District Court of the First Judicial District. Plaintiff, Franklin, laid this action for damages against the defendant, as sheriff, for" an alleged illegal seizure of his stock of goods. The case was tried, and judgment entered for defendant. Plaintiff moved for a new trial, which being denied, he appealed. The record does not in any manner disclose the existence of an appeal-bond, or show that the notice of appeal was served upon defendant, or his attorneys. Robert F. Morrison for Appellant. --for Respondent. [MAJORITY — Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring.] Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. Motion to dismiss appeal. In the case of Bryan v. Berry, July T., 1857, we decided that it must be shown, by the certificate of the clerk, that the undertaking on appeal was filed in due time. In this case there was nothing to show that the undertaking had been given. Another objection urged is, that there was no proof of service of the notice of appeal. The object of the notice would be entirely defeated without service. The appellant should show due service of the notice. It is an affirmative matter, to be proven by him. The respondents could not be expected to prove a negative, that he never had notice. Motion to dismiss sustained.