Moody v. McNeilly , 3 Heisk. 544 ( 1871 )

Nicholson, J.,

delivered the opinion of the Court.

A motion is made to strike this cause from the docket.

The final decree was rendered in the Chancery Court at Charlotte, on the 18th of September, 1866. No appeal was prayed for. On the back of the transcript the clerk of this court indorsed, “Filed 11th of March, 1867,” but no bond for costs, of that date, appears in the record. To the transcript is attached an appeal bond, signed by complainant and his security, dated February 3, 1868. ' There is nothing showing that any notice of the filing of the record, for writ of error has ever been given to defendants. On the minutes of this court, at its December Term, 1869, appears this entry: “This day comes Thos. McNeilly and moves the court to strike this cause from the equity docket of December Term, 1867, upon which the same appears without having been brought forward on the docket of December Term, 1868, and December Term, 1869; and the consideration of said motion is continued until the further order of this court.” No action was taken on this motion, at the December Term, 1869. According to the indorsement on the transcript by the clerk, the record was filed in time to have entitled the party filing it, to a writ of error; but as he failed to give bond for costs, the cause was not in court by virtue of the indorsement so made by the clerk. When the bond was given on the 3d February, 1868, the time within which the clerk was authorized to grant the writ of error, had elapsed. For that reason the cause was not put into court by the execution of the bond. Nor does it appear that any notice was -ever given to defendants, of the filing of the transcript, either before or after the filing thereof: Cox v. Goddard, 1 Heis., 777. Although the transcript was indorsed as filed on the 9fch of March, 1867; yet it appears that the case was not docketed, either at the December term, 1868, or December, 1869, and was not, in fact, docketed when defendant McNeilly moved to strike it off. We are unable to see that the case has ever been properly on the docket, and we therefore sustain the motion to strike it off.