Rager v. Tilford, 1 Ill. 407, 1 Breese 407 (1831)

Dec. 1831 · Illinois Supreme Court

1 Ill. 407, 1 Breese 407

William Rager, Appellant, v. William Tilford, Appellee.

APPEAL FROM SANGAMO.

A correct construction of the 33d section of the Practice act, requires that a party must make application for further time to file the transcript of the record, in cases of appeal, within the three days within which the transcript should be filed.

W. Thomas, for the appellee,

on the seventh day of the term presented to the court a transcript of the record • and proceedings of the court below, and stated to the court that the transcript had been received by the clerk of the court by mail, on Saturday, the 6th day of the term ; that it was not known whether the transcript had been made for the appellant or appellee, and thereupon moved the court to dismiss the appeal, for the reason that the appellant had failed to file a transcript of the record within the time required by law, and cited in support of his motion the 33d section of the Practice act, Rev. Laws of 1827, p. 319, and the 12th Rule of this court.

M’Roberts, contra, for appellant,

made a cross-motion for leave to file the transcript presented to the court, as the transcript of the record, and stated that it was owing to the delay of the mail that it was not received here earlier.

Per Curiam.

The court is of opinion that this appeal be dismissed. A correct construction of the 33d section of the Practice act, would require that a party must make application for further time to file the transcript, within the three days, within which the record should be filed. The words of the act are imperative; they are, “ unless the party shall have obtained further time.” As the appellant did not obtain further time, within the three days, his motion to file the transcript now is overruled.

Appeal dismissed.