delivered the opinion of the court.
It appears from the record in this case that judgment was rendered in the court below on the 7th day of June, 1870, and that the appellants have failed to prosecute their appeal.
The respondent presents to this court a perfect transcript, and asks for an affirmance, with ten per cent, damages.
An affidavit is filed on the opposite side from the clerk of the court, stating that owing to a press of business he was unable to make out the record in time for the sitting of the appellate court; and another affidavit is also filed stating that the transcript was ordered in time, but the clerk neglected to make it out. These affidavits furnish no reason why the motion should not be sustained. It was the duty of the clerk to employ all the clerical force that was needed to adequately discharge the duties of his office, and if he failed or neglected to do so the respondent must not be made to suffer thereby.
It was also the duty of the appellants to see that their transcript was filed within the time prescribed by law.
The judgment will be affirmed, but without damages.