Hunger v. Patterson ( 1873 )

Beck, Ch. J.

A motion is made in this cause by the appellee to affirm the judgment, on the ground that no written transcript has been filed in the cause as required by the law and rules of this court.

A printed abstract was filed but no transcript of the record is in this court. Under the rules of this court the appellant is required to file a printed abstract within the time prescribed, and upon a failure to comply with this requirement the judgment may be affirmed on motion of the appellee. Amended Rule 20; Rule 24. But these rules are not intended to supersede the statute which requires the filing of a certified transcript of the record in order to perfect the appeal (Code, § 3179), further than to permit such transcript to be waived by written agreement of the parties.

To entitle a party to be heard here a printed abstract is necessary, and unless it be waived by the agreement of the parties in writing appended to the printed abstract, the.certified transcript provided for by the section cited is also required. Rule 14.

Upon a failure to file the printed abstract the judgment may be affirmed on motion under Rule 24, as above stated. But in case of the failure to file the transcript, the appellee, in order to have the judgment affirmed, must file a certified transcript of the judgment required by Revision, section 3181.

This transcript is required when there is no written transcript filed by the appellant, for the reason that there is nothing here to advise the court that a judgment was rendered and the amount thereof. It is not required by the rules where there is a failure to file the printed abstract, for the reason that the written transcript filed by appellant is sufficient to show the judgment, its amount, and other particulars.