State ex rel. Farmers Bank of Maryland v. Mackall ( 1841 )

Archer, J.,

delivered the opinion of the court;

A motion has been made to dismiss the appeal taken in this case. The judgment was rendered, October 1839, and by the act of 1826, ch. 200, sec. 13, each party had three years froid the rendition of the judgment in the court below, to enter his appeal to this court. But the record does not shew at what time the appeal was entered. The bill of exceptions was filed at the October term 1839. But the filing of the exception is not equivalent to the entry of an appeal. We could not dismiss the appeal, as not having been brought to this court iri time, unless the time of its entry appeared in the record, or was admitted by the parties. According to the decision of this court in Chaytor and others vs. Oliver’s executors, the record must be transmitted to this court within forty days front the entry of appeal in the court below; and where the record is silent as to the time of the entry of the appeal, the law would presume that the officer, whose duty it was to transmit the record within forty days from the entry of the appeal, had discharged his duty. Acting on this presumption, the appeal must be considered in this Court in due time.

MOTION OVERRULED/

JYote. — By the act of 1841, ch. 46, the period of time for' sending up records by the clerks of the county courts and register of the Court of Chancery, is enlarged to nine months/