Tedder v. Odom

49 Tenn. 50 | Tenn. | 1870

Nicholsost, C. J.,

delivered the opinion of the Court.

Defendants move to dismiss the appeal because the appeal bond was not executed until the expiration of the time allowed by the decree for giving bond.

The decree was rendered on the 23d of August, 1867, allowing complainaot until the second rule day, which was the first Monday of October, 1867, to give his appeal bond. The bond was not executed until the 17th of October, 1867. The transcript was filed in this Court on the 30th of October, 1867. It follows that the cause has been here for three full terms, and the motion to dismiss is now made at the fourth term, when the complainant would have no right to file the transcript for writ of error, if the appeal should be dismissed. The motion comes too late. This Court held, at Knoxville, in the case of Gillespie v. Goddard,¹ that irregularities in bringing up cases on appeal were waived, unless, the motion to dismiss was made at the first term after the filing of the transcript. Of course this rule would be relaxed upon good cause shown for not making the motion at the first term. In this case, the motion is not made until the fourth term, and must be disallowed. The cause will be tried on its merits.²

1 1 Heis., 777.

2 See S. C.¡post 68.