Burch v. White

The Pbesident, delivered the opinion of the Court: Whether an appeal will lie from any judgment, is a question of law, to be decided by the Court; and the only evidence of what is decided by the Court, is the record. In this case, tho orders were read, in which no appeal was allowed, nor is any thing said of the appeal bond. No evidence of any other character than the record, ought to have been received by the Court. The filing of a bond in the office, is no proof that it was received by the Court, or that an appeal had been granted. The omission to enter it by the clerk, cannot be considered a clerical error, until it is shewn by the record, that the appeal was allowed, and the bond received. The case of Bent v. Patten, 1 Rand. 25, is in principle, like this case. The rate of interest, in that case, was adjudged to be matter of law; and the neglect to enter it, as the Court ought, to have adjudged it, was not considered a clerical error. The 108th section of the act of Jeofails, 1 Rev. Code, 512, does not apply. There Is nothing in the record to amend by. The filing of the bond with the clerk, was not in pursuance of [106] any thing in the record, nor warranted by any act of the Court of record. The appeal is therefore dismissed, as improvidently awarded. ,