Walter v. Second National Bank

Magruder, J., delivered the opinion of the Court. The motion to dismiss this appeal is based upon two grounds: 1. Because the record was not transmitted in time. 2. Because the appeal does not appear to have been taken by any one having an interest in the subject-matter of the controversy.

The order for the appeal was filed on the 20th of February, 1880, and the record was not transmitted until the 4th of October, 1880, more than six months thereafter. The delay is sufficiently accounted for, however, by the affidavit of the counsel for the appellant, taken and filed in this Court. The clerk refused to make out the record before being paid for it. This course he had no right to take.

It was. his duty to make out the record in due time, and when completed he might refuse to transmit it until paid for by the party taking the appeal. But, as appears by the affidavit of counsel, the record in this case was not actually completed until after the cost of making was actually paid, so that the delay being from the fault ¹⁴⁰ of the clerk, this ground for dismissing the appeal must, according to the rule and settled practice, be overruled. The other ground must prevail. The defendants in the cause are Edmund T. H. Walter and wife, the latter having no substantial interest in the matter in controversy.

The interest of E. T. H. Walter in the cause (being the surplus arising from the sale of the mortgaged premises, in the case of Foutz vs. Walter and wife, under which the property was sold,) was, by an instrument of writing bearing date the 10th of October, 1877, (being prior to the filing of the petition of the appellee upon which this controversy arose,) assigned to Maria Walter, his sister, in absolute and unqualified terms. The order for the appeal is signed by the solicitor, who represented Walter and wife below, and the signature of the solicitor has the addition “ Defts’ Solicitor.” Maria Walter was represented below by another solicitor, who files a petition in her name asking for the payment of the surplus fund to her, by virtue of her assignment, and his signature has the addition “ For Claimant;” and Maria Walter is nowhere in the case, by any of the proceedings, or by any of the counsel, treated or spoken of as a party eo nomine, or as an actor in the controversy, except in this matter alone of her separate petition for the fund, and by her own separate solicitor; and no appeal is ordered in her name, or hy her solicitor