This cause having been appealed more than, thirty days before the commencement of the January term, 1902, of this court, the record should have been lodged in the office of the cleric of this court not later than January 15, being the third day after the beginning of said term. — Code, sec. 389.
It was not so lodged, ¡however, until February 28, following.
Appellee moved to dismiss the appeal on the ground of this failure, but said motion was not filed until April 7, 1902, long subsequent to the actual filing of the record.
The code section has been directly passed upon by the supreme court in a case involving a precisely similar state of facts, and it was there held that the failure of appellants in this respect did not of itself deprive them of their appeal.—Thalheimer v. Crow, 13 Colo. 403, citing Sparrow v. Strong, 3 Wall. 103.
Upon the authority of this decision, and it further appearing that no prejudicial delay has been occasioned by the failure of appellant, the motion to dismiss will he denied. ‘ Motion denied.