West v. Brashear, 37 U.S. 101 (1838)

U.S. Supreme Court

West v. Brashear, 37 U.S. 12 Pet. 101 101 (1838) West v. Brashear

37 U.S. (12 Pet.) 101

APPEAL FROM THE CIRCUIT COURT

FOR THE DISTRICT OF KENTUCKY

Syllabus

A defendant in an appeal, using the copy of the record received from the circuit court lodged by the appellant, cannot have the appeal docketed and dismissed under the 30th rule of the Court on the ground that the appellant has failed to comply with the 37th rule, which requires a bond to be given to the clerk of the Supreme Court before the case is docketed. He must, to sustain a motion to dismiss the cause, produce the certificate of the circuit court stating the cause and certifying that such an appeal has been duly sued out and allowed.

MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.

In this case an appeal has been taken from the decree of the Circuit Court for the Eighth Circuit, and a copy of the record in due form has been lodged by the appellants with the clerk. But the case has not been docketed, because the appellants have not filed the bond to secure the fees to the clerk of this Court prescribed by the rule No. 37, adopted at January term, 1831.

Upon the record brought here as above-mentioned, the appellee has moved the Court for leave to docket and dismiss the case under the 30th rule. We think this cannot be done. The appellee, upon producing the certificate from the clerk of the circuit court, as required by the 30th rule of this Court, stating the cause and certifying that such an appeal had been duly sued out and allowed, will be entitled to have the case docketed and dismissed. But this cannot be done on the record brought here by the appellants.

The motion is therefore

Overruled.