29 F.2d 403 | 4th Cir. | 1928
The appellee has made a motion to dismiss the appeal in this case on the ground that the bill of exceptions was not signed within the time allowed by the court below. .We have examined the record; and we find that the contention of ap-pellee with regard to this matter is correct. The failure of appellant to have the bill of exceptions signed and allowed within the proper time, however, is not ground of motion to dismiss the appeal, but to strike the bill of exceptions from the record. Goet-zinger v. Woodley (C. C. A.) 17 F.(2d) 83. When the bill of exceptions is thus stricken, we review the primary record; and, if no error is apparent therein, the judgment below is affirmed.
In looking through the reeord in this case, however, we find no order allowing an appeal from the judgment below or approving the appeal bond. We have ordered all of the original papers in the ease sent up, and there is nothing in any of them to indicate that an appeal has been allowed. In this situation we cannot dismiss the appeal, as no appeal has been allowed, nor can we affirm the judgment below, as there is no appeal to bring it before us for review. All that we can do is to strike the cause from the docket of this court, and this will accordingly be done, and the original papers will be sent back to the District Court.
Remanded.
