Dwight v. McMillen

The judgment of the court (King, J. absent,.)) was pronounced "by Sljtoell, J. This appeal was returnable on the 1st mpnday of November, 184.7, and the transcript was not filed until, the 6th of. the ensuing December. The appellee has moved, upon this groupd, the dismissal, of the case ; to which motion the appellant replies that, it was npt made.- within, three days after the transcript was filed, and, under the ruling ip, O’Reilly v. McLeod, 2 An. 138, cannot be entertained. Under the provisions of the Code of Practice we have frequently held that, a party who neglects to file the transcript seasonably, must be considered as having abandoned his appeal'. The omission of the appellee to move for the dismissal upon that ground within three days after the filing of- the transcript, ought not to bar the appellee, for two reasons : first, because he was not cited; and secondly, because he cannot be held to constant vigilance, after the legal delay has passed, in watching, day by day, the docket to see at what time the negligent appellant will file the transcript. The appellee cannot be considered as having waived his right to a dismissal, and the motion must be maintained. Appeal dismissed.