Glenn v. Chesapeake Bank

Le Grand, C. J., delivered the opinion of this court. The appeal in this case is from two orders passed by the circuit court, one on the 4th day of November 1852, and the other on the 5th day of January 1853. The appeal, it is agreed by counsel, was taken on the day of the last order. The record was not filed in this court until the 18th day of May 1853, being more than sixty days after the date of the last order.

In this state of case a motion has been made to dismiss the appeal, on the ground that the appeal from the first order was not prayed in time, nor the record sent up to this court within the time specified in the act of 1849, chapter 88, which is the only act authorising appeals from orders and decrees passed in cases of insolvency. We think the appeal, so far as the order of the 5th day of January 1853 is concerned, is properly before us. We are of opinion the act of 1842, chapter 288, ought to be viewed in connection with the act of 1849, chapter 88. The act of 1842 provides, that in no case then pending, or thereafter to be depending, in the Court of Appeals, shall any appeal be dismissed, because the transcript or certified copy of the record shall not have been transmitted within the time required by law, if it appear to the court that such delay in transmitting the record was occasioned by the neglect or omission of the clerk, and without default of the party.

In the case now before us, so far as the order of the 5th January 1853 is involved, the appellant appears to have done all that it was in his power to do.- It is conceded and agreed, that he prayed an appeal on the very day the order was passed; and, although this court would presume the clerk did his duty if it did not appear when the appeal was prayed, (Farmers Bank vs. Mackall, 11 Gill and Johns., 456,) yet, when the fact is