Byrne v. Rodney

1 Mo. 742 | Mo. | 1827

M’Girk, C. J.,

delivered the opinion of the Court.

In this case, a motion was made to affirm the judgment, on the ground that the record was not brought up ten days before the commencement of this Court. The statute says this shall be done, and that the judgment of the Circuit Court shall be affirmed, unless a satisfactory excuse is given for the delay. An excuse was set up in this case, which we deem insufficient. It appears, that in this case no praecipe was given to the Clerk to make out the transcript. We give the law this construction, that when an appeal is taken, the appellant must make his praecipe to the Clerk and pay the fees, or otherwise serve the Cleric in this matter, before the Clerk is bound to proceed, or, at all events, the Clerk is not bound to deliver the record till he is paid, or made content, as to his fees; and that it is then the business of the party to transmit the record to the Supreme Court. The law is, also, in a case of this kind, that this Court, if no satisfactory excuse is given, shall affirm or dismiss,, but not reverse. The practice under this statute has been to look into the record, and if a judgment can be given on the merits, without regard to technicalities, to affirm; but if not, then to dismiss. We have looked into this record, and find it substantially correct.

The judgment, agreeably to the motion, is affirmed, with costs, and two and a half per cent, damages.