171 S.E. 646 | W. Va. | 1933
This is a motion to dismiss an appeal for failure of appellant to deposit with the clerk of this court within three months from the docketing of the appeal an amount sufficient to pay the costs of printing the record in the cause.
After the expiration of the three months' period, without the deposit having been made, the appellant asked leave to move for reversal on the original record, which leave was granted and the cause docketed for hearing. This action was taken without the attention of the court being called to the fact that more than three months had elapsed since the docketing of the appeal; otherwise, the request should have been refused.
Section 17, article 5, chapter 58, Code 1931, provides that "should the appellant or plaintiff in error fail for three months after his case has been docketed in the court of appeals to deposit with the clerk of said court of appeals a sufficient sum to pay for the printing of the record, he shall be deemed to have abandoned his appeal or writ of error and the sameshall be dismissed; * * *." The act has been held mandatory inPerry v. Horn,
We cannot ignore the plain terms of the statute or depart from our former rulings thereon merely because the appeal may be meritorious. As this court had already lost jurisdiction, the placing of the cause on the docket to be heard upon the original record did not alter the situation. The motion to dismiss in the Huffman case was interposed at the hearing long after the record had been printed.
The motion is, therefore, sustained.
Motion sustained.